Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honor.
Appears in 2 contracts
Samples: Letter of Credit Reimbursement Agreement (Spurlock Industries Inc), Reimbursement Agreement (Dynamic Materials Corp)
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks (a) The liability of the acts Bank (or omissions any other Indemnified Person) under, in connection with and/or arising out of the Trustee and this Agreement, any transferee of Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to any direct damages suffered by the Applicant that are caused directly by Bank’s gross negligence or willful misconduct in (i) honoring a presentation that does not at least substantially comply with respect the Letter of Credit, (ii) failing to its use of honor a presentation that strictly complies with the Letter of Credit or its proceeds(iii) retaining Drawing Documents presented under the Letter of Credit. Neither In no event shall the Bank nor be deemed to have failed to act with due diligence or reasonable care if the Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any of its officers or directors shall be liable or responsible for: (a) the use which may be made of Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or its proceeds or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any acts punitive, consequential, indirect or omissions special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the Trustee possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any transferee damages claimed against the Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection therewith; with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.
(b) the validityWithout limiting any other provision of this Agreement, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank and each other Indemnified Person (if applicable), shall not be responsible to the Applicant for, and the Bank’s rights and remedies against the Applicant and the Applicant’s obligation to reimburse the Bank shall not be impaired by: (i) honor of a presentation under the Letter of documents Credit which do not strictly comply on its face substantially complies with the terms of the Letter of Credit, including any failure ; (ii) honor of a presentation of any documents Drawing Documents which appear on their face to have been signed, presented or issued (X) by any purported successor or transferee of any beneficiary or other party required to sign, present or issue the Drawing Documents or (Y) under a new name of the beneficiary; (iii) acceptance as a draft of any written or electronic demand or request for payment under the Letter of Credit, even if nonnegotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any reference or adequate reference to the Letter of Credit; (iv) the identity or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent authority of any directpresenter or signer of any Drawing Document or the form, as opposed to consequentialaccuracy, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Creditgenuineness, or (ii) the Bank's willful failure to pay legal effect of any presentation under the Letter of Credit after presentation to it by the Trustee or of any Drawing Documents; (or a successor trustee under the Indenture to whom the Letter v) disregard of Credit has been transferred any non-documentary conditions stated in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance ; (vi) acting upon any Instruction which it, in Good Faith, believes to have been given by a Person or entity authorized to give such Instruction; (vii) any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation; (viii) any delay in giving or failing to give any notice; (ix) any acts, omissions or fraud by, or the solvency of, any beneficiary, any nominated Person or any other Person; (x) any breach of contract between the beneficiary and not in limitation the Applicant or any of the foregoing, parties to the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness underlying transaction; (xi) assertion or waiver of any signature thereonprovision of the ISP which primarily benefits an issuer of a letter of credit, without responsibility for further investigationincluding, regardless of any notice requirement that any Drawing Document be presented to it at a particular hour or information place; (xii) payment to the contrary unless actually received any paying or negotiating bank (designated or permitted by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to the terms of the Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice; (xiii) dishonor of any presentation upon or during any Event of Default or for which the Applicant is unable or unwilling to be presented to reimburse or indemnify the Bank are not (provided that the Applicant acknowledges that if the Bank shall later be required to be honoredhonor the presentation, the Bank agrees that it will not honor such documents Applicant shall be liable therefore in accordance with Article 2 hereof); and (xiv) acting or failing to act as required or permitted under Standard Letter of Credit Practice. For purposes of this Section 7.5(b), “Good Faith” means honesty in fact in the Borrower shall indemnify and hold conduct of the Bank harmless from such failure to honortransaction concerned.
Appears in 2 contracts
Samples: Application for Letter of Credit and Reimbursement Agreement (NuStar Energy L.P.), Application for Letter of Credit and Reimbursement Agreement (NuStar Energy L.P.)
Liability of the Bank. Between the Borrower and (a) Without waiving, for purposes of this Section, any legal right against parties other than the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers officers, directors, employees or directors agents shall be liable or responsible for: (ai) the use which may be made of the Letter of Credit or its proceeds by or for any acts or omissions of the Trustee and or any transferee in connection therewith; (bii) the validity, sufficiency or genuineness of drafts, certificates or documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such drafts, certificates or documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (ciii) good faith payment by the Bank against presentation of documents drafts or certificates which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (div) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, Borrower to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft determining whether drafts, certificates or documents presented under the Letter of Credit, Credit complied with the terms of the Letter of Credit or (ii) the Bank's wrongful and willful failure to pay under the Letter of Credit after the presentation to it by the Trustee (or a successor trustee Trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate drafts, certificates or documents strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not Credit (it being understood that in limitation of making such payment the foregoing, Bank's exclusive reliance on the documents presented to the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to accordance with the terms of the Letter of Credit as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of Credit proves to be presented to the Bank are not forged, fraudulent, invalid or insufficient in any respect or any statement therein proves to be honoreduntrue or inaccurate in any respect whatsoever, shall not be deemed willful misconduct or gross negligence of the Bank). The Bank is hereby expressly authorized and directed to honor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between the Issuer, the Bank agrees that it will not honor such Borrower, the Trustee or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcorrect.
Appears in 1 contract
Samples: Reimbursement Agreement (Kv Pharmaceutical Co /De/)
Liability of the Bank. Between the Borrower and the Bank, the Borrower (a) The Applicant assumes all risks of the acts or omissions of the Trustee Trustee, or any agent of the Trustee, and any transferee beneficiary of the Letter of Credit with respect to its use of the Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (ai) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee beneficiary in connection therewith; (bii) the validity, sufficiency validity or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (diii) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except however, that the Borrower Applicant shall have a claim against the Bank, and the Bank shall be liable to the BorrowerApplicant, to the extent, but only to the extent of any directdirect compensatory, as opposed to consequential, damages suffered by the Borrower Applicant which the Borrower Applicant proves were caused by (i) the Bank's willful misconduct failure to act in good faith or gross negligence to observe general banking usage in honoring a draft under connection with the Letter of Credit, Credit or (ii) the Bank's willful failure to pay examine documents presented under the Letter of Credit after presentation with care to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance determine whether they comply with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to the terms of the Letter of Credit (it being understood that the Bank assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to be regular on its face). The Bank is hereby expressly authorized and directed to honor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between or among the Applicant, the Trustee, any transferee beneficiary of the Letter of Credit or any other Person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and correct.
(b) The Bank represents and warrants to the Bank are not to be honored, the Bank agrees Applicant that it will not honor such documents has all necessary authority to enter into this Agreement and to issue the Borrower shall indemnify and hold the Bank harmless from such failure to honorLetter of Credit.
Appears in 1 contract
Samples: Reimbursement Agreement (Griffith Micro Science International Inc)
Liability of the Bank. Between the Borrower and the Bank, the Borrower (a) The Commission assumes all risks of the acts or omissions of the Trustee Tender Agent, the Paying Agent and the Remarketing Agent and any transferee agent of the Letter of Credit Tender Agent, the Paying Agent and the Remarketing Agent and their agents with respect to its this Agreement and the use of any amounts made available by the Letter Bank hereunder. The Bank shall have no responsibility for, nor incur any liability in respect of, any act, or any failure to act, by the Tender Agent which results in the failure of Credit the Tender Agent to effect the purchase of Eligible Bonds for the account of the Bank with funds provided by the Bank pursuant to Section 2.02 or its proceedsto comply with the applicable provisions of the Resolutions. Neither the Bank nor any of its officers employees, officers, directors or directors agents shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its proceeds this Agreement or for any acts or omissions of the Trustee and any transferee Commission, the Tender Agent, the Paying Agent and/or the Remarketing Agent in connection therewith; (b) the validity, sufficiency validity or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credithereof, including any failure of any documents to bear any reference or adequate reference to the Letter of Creditthis Agreement; or (d) any other circumstances whatsoever in making or failing to make payment under hereunder; provided, however, that the Letter of Credit, except the Borrower Commission shall have a claim against the Bank, Bank and the Bank shall be liable to the BorrowerCommission, to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower Commission which the Borrower Commission proves were caused by (i) the Bank's ’s willful misconduct or gross negligence negligent failure to make lawful payment hereunder in honoring a draft under accordance with the Letter of Creditterms hereof, or (ii) the Bank's willful unless such failure to pay under resulted from circumstances beyond the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of CreditBank’s control. In furtherance and not in limitation of the foregoing, the Bank may accept documents that the Bank in good faith determines appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless .
(b) The Commission assumes all risks associated with the acceptance by the Bank of any notice or information to the contrary unless actually documents received by telecommunication, it being agreed that the Bank; provided, use of telecommunication devices is for the benefit of the Commission and that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorassumes no liabilities or risks with respect thereto.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. Between the Borrower and the Bank, --------------------- the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its any of the proceeds thereof, or for any acts or omissions of the Trustee and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honor. In the event any claim, demand, action or suit, loss, or liability is asserted against Bank arising in any manner from the issuance, presentation or acceptance of drafts under the Letter of Credit or the interpretation of or actions under the Letter of Credit, the Borrower agrees to indemnify, hold harmless and defend Bank, its agents, officers and directors from any loss or damage, including without limitation, reasonable attorneys' fees and costs, except for Bank's obligations stated in the Letter of Credit and for loss or liability incurred by Bank's willful misconduct or gross negligence as referenced above. The agreements in this paragraph will survive any payment under or termination of this Reimbursement Agreement.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the (a) The Borrower assumes all risks of the acts or omissions of the Bond Trustee or the Note Trustee, as the case may be, and any beneficiary or transferee of the any Direct Pay Letter of Credit with respect to its use of the such Direct Pay Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers agents, employees, officers, directors or directors counsel shall be liable or responsible for: :
(ai) the use which may be made of the any Direct Pay Letter of Credit or its proceeds or for any acts or omissions of the Bond Trustee or the Note Trustee holding said Direct Pay Letter of Credit and any beneficiary or transferee in connection therewith; ;
(bii) the form, validity, sufficiency sufficiency, accuracy or genuineness of documentsany document (including, inaccuracy without limitation, any document presented under any Direct Pay Letter of any of the statements or representations contained therein Credit), or of any statement or endorsement(s) thereon, even if such documents documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent fraudulent, forged, inaccurate or forged; untrue;
(ciii) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the a particular Direct Pay Letter of Credit, including any failure of any documents to bear any reference or adequate reference to said Direct Pay Letter of Credit, or any other failure by the Bond Trustee or the Note Trustee, as the case may be, to comply fully with conditions required in order to effect a drawing under any Direct Pay Letter of Credit issued to it or any failure of said Trustee in connection with its obligations under the Bond Documents or the Note Documents, as the case may be;
(iv) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a particular Direct Pay Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(v) errors, omissions, interruptions or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise;
(vi) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under a particular Direct Pay Letter of Credit; or
(vii) any action, inaction or (d) omission which may be taken by the Bank in good faith in connection with a Direct Pay Letter of Credit or any other circumstances whatsoever in making or failing to make payment under the a Direct Pay Letter of Credit, ; except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (iA) the Bank's willful misconduct or gross negligence negligence, or that of any of its agents, employees, officers, directors or counsel, in honoring determining whether documents presented under a draft under the particular Direct Pay Letter of Credit, Credit comply with the terms of said Direct Pay Letter of Credit or (iiB) the Bank's 's, or that of any of its agents, employees, officers, directors or counsel, willful failure to pay under the a particular Direct Pay Letter of Credit after the presentation to it or any of them by the Bond Trustee (or the Note Trustee, as the case may be, holding a successor trustee under the Indenture to whom the particular Direct Pay Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the said Direct Pay Letter of Credit, unless the Bank or such other Person in good faith and upon advice of counsel 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 which appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, investigation regardless of any notice or information to the contrary unless actually received by the Bankcontrary; provided, provided that if the Bank shall receive written notification from both either the Bond Trustee or the Note Trustee, as the case may be, holding a particular Direct Pay Letter of Credit and the Borrower that documents conforming to the terms of the said Direct Pay Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents and documents.
(b) Except for the Bank's obligations under a particular Direct Pay Letter of Credit, the Bank shall have no liability to the Borrower shall indemnify and hold or any other Person as a result of any tender of Bonds resulting from a reduction of the credit rating of the Bank harmless from or any deterioration in the Bank's financial condition. No such failure tender of Bonds shall reduce or in any way diminish the Obligations of the Borrower to honorthe Bank under this Agreement.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its any of the proceeds thereof, or for any acts or omissions of the Trustee and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honor.the
Appears in 1 contract
Liability of the Bank. Between the Borrower The CSD Member agrees and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: acknowledges that:-
(a) the use which may Bank and its servants and agents shall not be made liable for any liability, claim, loss, damage or expense of any kind or nature caused directly or indirectly by the operation by the Bank of the Letter CSD Dealing Service or any part thereof (including the safe custody of Credit CSD Instruments) or its proceeds or any inadequacy thereof for any acts purposes or omissions any deficiency or defect therein or any delay in providing or failure to provide the CSD Dealing Service or any interruption or loss of the Trustee CSD Dealing Service or loss of business, loss of profit or other consequential damage or any damage whatsoever and howsoever caused (including but without prejudice to the foregoing by reason of machine or computer malfunction or error and also any transferee in connection therewith; suspension or variation pursuant to clause 5(3) save to the extent that such liability, claim, loss, damage or expense and results from the willful default, bad faith or negligence of or breach of its obligations under this Agreement by the Bank;
(b) the validityCSD Member shall indemnify the Bank and its servants and agents against all expenses, sufficiency claims, damages and liabilities whatsoever arising directly or genuineness indirectly from the actions and/or omissions in connection with the CSD Dealing Service of documentsthe CSD Member, inaccuracy every person for whom the CSD Member acts as agent or nominee, the CSD Member's settlement bank or the CSD Member's servants or agents (whether or not authorized by the CSD Member) and/or any failure of the CSD Member to comply with this Agreement or the CSD Dealing Rules in so far as such actions and/or omissions affect the Bank in its capacity as operator of the CSD Dealing Service, save to the extent that the Bank is liable under Article 10 paragraph (a) above. The CSD Member agrees that the indemnity referred to herein shall survive any termination of the CSD Member's membership of the CSD Dealing Service;
(c) the Bank shall execute or otherwise act upon valid instructions or information received through the CSD Dealing Service and instructions or information received in accordance with the CSD Dealing Rules. Provided that if it is subsequently discovered that such instructions or information was not correct or authorized in accordance with the CSD Dealing Rules then such execution or action shall, save in the case of willful default, gross negligence or reckless disregard of its obligations constitute a good discharge to the Bank, which shall not be liable for any liability, damage, expense, claim or loss (including loss of business, loss of profit and consequential damage of any kind) whatsoever arising in whatever manner directly or indirectly from and/or as a result of such execution or action;
(d) notwithstanding any checks or other investigations which the statements Bank may carry out with respect to the genuineness, validity or representations contained therein completeness of any CSD Instrument being held in the CSD Dealing Service, or of any endorsement(s) thereonsignature appearing on any such CSD Instrument, even if or as the validity of any disposition of any such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply CSD Instrument with the terms details specified in respect of that CSD Instrument in the Letter of CreditCSD Dealing Service, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall not be liable under any liability to the BorrowerCSD Member or any other person as a result of any actual or alleged defect or irregularity with respect to any such CSD Instrument, the CSD Member shall indemnify the Bank and its servants and agents against all expenses, damages and liabilities whatsoever arising from any claim on the part of any person in favor of whom the CSD Member disposes of any CSD Instrument withdrawn from the CSD Dealing Service based on any actual or alleged defect or irregularity with respect to any such CSD Instrument, or any inconsistency of any such CSD Instrument when compared with the details specified in respect of that CSD Instrument in the CSD Dealing Service;
(e) the Bank gives no representation as to the extent, but only to the extent credit worthiness of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct CSD Member or gross negligence any other person who may be or become liable upon a CSD Instrument and in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if particular the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming not incur any liability to the terms a CSD Member or any other person as a result of the Letter of Credit any failure by any such CSD Member or other person to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents and the Borrower shall indemnify and hold the Bank harmless from such failure to honorpay for a CSD Instrument.
Appears in 1 contract
Samples: CSD Dealing Agreement
Liability of the Bank. Between As between the Borrower Borrower, on the one hand and the BankBank and the Bank Participants, on the other hand, the Borrower assumes all risks of the acts or omissions of the Bond Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceedsCredit. Neither None of the Bank, the Bank Participants nor any of its their respective officers or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Bond Trustee and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent extent, of any direct, as opposed to consequentialconsequential or punitive, damages suffered by the Borrower to the extent to which the Borrower proves were caused by (i) the Bank's ’s willful misconduct or gross negligence in honoring a draft determining whether documents presented under the Letter of Credit, Credit comply with the terms thereof or (ii) the Bank's ’s willful or grossly negligent failure to pay under the Letter of Credit after the presentation to it by the Bond Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions thereof; provided that the maximum amount of damages recoverable by the Borrower as provided above is expressly limited to the Stated Amount of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank and the Bank Participants may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the contrary. The Bank shall receive written notification from both the Trustee and the Borrower that documents conforming not be liable in any way for any failure on its part to the terms of honor any draft under the Letter of Credit to be presented to as a result of any act or omission (whether rightful or wrongful) of any Governmental Authority or any other cause beyond the Bank are not to be honored, control of the Bank agrees that it will not honor such documents and the Borrower shall indemnify and hold the Bank harmless from such failure to honorBank.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the Borrower The Company assumes all risks of the acts or omissions of the Trustee Trustee, the Remarketing Agent, the Paying Agent or any agent of the Trustee, the Remarketing Agent or the Paying Agent and any transferee of the Letter of Credit with respect to its their use of the Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: for (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee in connection therewith; , (b) the validity, sufficiency validity or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) endorsement thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; , (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; , or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except however, that the Borrower Company shall have a claim against the Bank, and the Bank shall be liable to the BorrowerCompany, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower Company which the Borrower Company proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft determining whether documents presented under the Letter of Credit, Credit comply with the terms of the Letter of Credit or (ii) the Bank's willful or grossly negligent failure to pay make lawful payment under the Letter of Credit after the presentation to it the Bank by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not Credit (it being understood that in limitation of making such payment the foregoing, Bank's exclusive reliance on the documents presented to the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to accordance with the terms of the Letter of Credit as to be any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of Credit proves to forged, fraudulent, invalid or insufficient in any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the Bank). The Bank are not is hereby expressly authorized and directed to be honoredhonor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between the Issuer, the Bank agrees that it will not honor such Company, the Remarketing Agent, the Trustee, the Paying Agent, or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcorrect.
Appears in 1 contract
Samples: Letter of Credit Agreement (Central Power & Light Co /Tx/)
Liability of the Bank. Between the Borrower The Authority and the Bank, Tender Agent agree that the Borrower assumes all risks of Bank shall have no liability or responsibility for the acts or omissions of the Trustee and any transferee Remarketing Agent, the Authority or the Tender Agent in respect of the Letter of Credit with respect to its use of this Agreement or any amounts made available by the Letter Bank hereunder. The Bank shall have no responsibility for, nor incur any liability in respect of, any act, or any failure to act, by the Tender Agent, the Authority or the Remarketing Agent which results in the failure of Credit the Tender Agent to effect the purchase of Tendered Bonds for the account of the Bank with funds provided by the Bank pursuant to Section 2.02 hereof or its proceedsto comply with the applicable provisions of the Supplemental Resolution or any Related Document to which the Tender Agent is a party. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of this Agreement or any amounts made available by the Letter of Credit or its proceeds Bank hereunder or for any acts or omissions of the Trustee and any transferee Tender Agent or the Remarketing Agent or their agents in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Creditthis Agreement, except only that the Borrower Authority shall have a claim against the Bank, Bank and the Bank shall be liable to the Borrower, to the extent, but only Authority to the extent of any direct, as opposed to distinguished from consequential, damages suffered by the Borrower which Authority when the Borrower Authority proves in a final, non-appealable judgment that such direct damages were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's ’s willful failure to pay purchase Tendered Bonds when required under the Letter terms and conditions of Credit this Agreement after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) Tender Agent of a sight draft and certificate notice strictly complying with the terms and conditions hereof or were caused by the gross negligence of the Letter of CreditBank. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcontrary.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. Between the Borrower and As to the Bank, the Borrower Authority assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit Issuing and Paying Agent with respect to its their use of the Letter of Credit and the proceeds thereof; provided, however, that this assumption is not intended to, and shall not, preclude the Authority from pursuing such rights and remedies as it may have against the Trustee or its proceedsthe Issuing and Paying Agent at law or under any other agreement. Neither the Bank nor any of its officers officers, directors, employees or directors agents shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its any proceeds of the Letter of Credit or for any acts or omissions of the Trustee or the Issuing and any transferee in connection therewithPaying Agent; (b) the validity, sufficiency or genuineness of any documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereonendorsements, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except however, that the Borrower Authority shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extentAuthority for direct, but only to the extent of any direct, as opposed to not consequential, damages suffered by the Borrower Authority which the Borrower proves were caused solely by (i) the Bank's willful misconduct or gross negligence of the Bank in honoring a draft connection with drawings under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter . By way of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoingamplification, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming contrary. Subject to the terms foregoing, the determination of whether a Drawing has been presented under the Letter of Credit to be presented prior to the Bank are not to Termination Date or whether a Drawing under the Letter of Credit or any accompanying document or instrument is in proper and sufficient form shall be honored, made by the Bank agrees that it will not honor such in its sole discretion, which determination shall be conclusive and binding upon the Authority. The Authority hereby waives any right to object to any payment made under the Letter of Credit against a Drawing with accompanying documents and in the Borrower shall indemnify and hold forms provided for in the Bank harmless from such failure to honorLetter of Credit but varying in punctuation, capitalization, spelling or similar matters of form.
Appears in 1 contract
Samples: Reimbursement Agreement
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of this Agreement or of any amounts made available by the Letter of Credit or its proceeds Bank hereunder by, or for any acts or omissions failures to act of, the Trustee or the Remarketing Agent in connection with this Agreement, including the failure of the Trustee and any transferee in connection therewithto credit the appropriate account with funds made available by the Bank pursuant to Section 2.02 hereof, to effect the purchase of Tendered Bonds for the account of the Bank with funds provided by the Bank pursuant to Section 2.02(d) hereof or to comply with the applicable provisions of the 1991 Master Resolution; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment forged by any Person other than the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of CreditBank; or (dc) any other circumstances whatsoever in making or failing to make payment under this Agreement; provided, however, that the Letter of Credit, except the Borrower Issuer shall have a claim against the Bank, Bank and the Bank shall be liable to the BorrowerIssuer for any and all claims, to damages, losses, liabilities and reasonable costs or expenses (including reasonable attorney’s fees and expenses) suffered by the extent, but only Issuer if and to the extent of any direct, as opposed to consequential, damages suffered by that the Borrower which the Borrower proves were caused by following two conditions are met: (i) a court of competent jurisdiction determines in a final, nonappealable judgment that such claims, damages, losses, liabilities and reasonable costs or expenses are a result of the Bank’s purchase or failure to purchase Tendered Bonds in accordance with the terms and conditions of this Agreement as a result of the Bank's negligence or willful misconduct or gross negligence in honoring a draft under the Letter of Creditmisconduct, or and (ii) the Bank's willful purchase or failure to pay under the Letter of Credit after presentation to it purchase is not caused by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions failure of the Letter of Credit. In furtherance and not in limitation Remarketing Agent or the Trustee to give notice to the Bank of the foregoing, tender of Bonds for purchase in the Bank may accept documents that appear on their face to be time and manner provided in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the BankSection 2.02(a) hereof; provided, further, that if the Bank shall receive written notification from both in no event be liable to the Trustee Issuer for punitive or consequential damages, and the Borrower that documents conforming Issuer hereby waives its right 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 receive any such documents and the Borrower shall indemnify and hold the Bank harmless from such failure to honordamages.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. Between the Borrower and the Bank, the Borrower (a) The Authority assumes all risks of the acts or omissions of the Trustee Issuing and any transferee of Paying Agent and the Letter of Credit Dealer with respect to its use the proceeds of the Letter of Credit any Drawing or its proceedsAdvance. Neither the Bank nor any of its officers officers, directors, employees or directors agents shall be liable or responsible for: for (ai) the use which may be made of the Letter proceeds of Credit any Drawing, Advance or its proceeds Term Loan or for of any acts or omissions of the Trustee Issuing and Paying Agent, the Dealer or any transferee in connection therewith; , (bii) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereonendorsements thereon (other than the validity as against the Bank of any agreement to which it is a party), even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; , (ciii) good faith payment by the lack of validity or enforceability of the Notes, the Resolution, the Issuing and Paying Agency Agreement, the other Transaction Documents or any other agreement or instrument relating thereto (other than the validity or enforceability as against the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents agreement to bear any reference or adequate reference to which the Letter of Credit; Bank is a party), or (div) any other circumstances whatsoever in making or failing to make payment under this Agreement; provided, that the Letter of Credit, except the Borrower Authority shall have a claim against the Bank, and the Bank shall be liable to the BorrowerAuthority, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower Authority which the Borrower Authority proves were caused by the Bank’s willful misconduct or negligence in determining whether documents presented under the Standby Letter of Credit complied with the terms of the Standby Letter of Credit (i) it being understood that in making such payment the Bank's exclusive reliance on the documents presented to the Bank in accordance with the terms of the Standby Letter of Credit as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Standby Letter of Credit proves to be forged, fraudulent, invalid or insufficient in any respect or any statement therein proves to be untrue or inaccurate in any respect whatsoever, shall not be deemed willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit). In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information (other than actual knowledge to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming contrary) 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcontrary.
Appears in 1 contract
Samples: Standby Letter of Credit and Reimbursement Agreement
Liability of the Bank. Between The Company shall hold the Borrower and the Bank, the Borrower assumes all risks of Bank harmless from the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceedsCredit; provided that this assumption with respect to the Bank is not intended to and shall not preclude the Company from pursuing such rights and remedies as it may have against the Trustee under any other agreements. Neither the Bank nor any of its employees, officers or directors shall be liable or responsible for: (ai) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee in connection therewith; (bii) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects respect invalid, insufficient, fraudulent or forged; (ciii) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any but not limited to failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (div) any other circumstances circumstances, whatsoever in making or failing to make payment under the Letter of Credit, except only that the Borrower Company shall have a claim against the Bank, and the Bank shall be be, liable to the BorrowerCompany, to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower Company which the Borrower Company proves were caused by (iA) the Bank misconduct or negligence in determining whether documents presented under the Letter of Credit comply with the terms of the Letter of Credit or (B) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful negligent failure to pay under the Letter of Credit after the presentation to it by the Trustee (or a successor trustee Trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, order without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bankcontrary; providedprovided that, that if the Bank shall receive written notification from both the Trustee and that sufficiently identifies (in the Borrower that documents conforming to the terms opinion of the Letter of Credit Bank) documents to be presented to the Bank which are not to be honored, the Bank agrees that it will not honor such documents and the Borrower shall indemnify and hold the Bank harmless from such failure to honordocuments.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may The Bank shall not be made of the Letter of Credit or its proceeds or liable for any acts action taken or omissions omitted by it except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Trustee Bank’s gross negligence or willful misconduct was the direct cause of any loss to the Customer, and any transferee subject to the limitations set forth in connection therewith; Section 15(d) of this Agreement.
(b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference Notwithstanding anything to the Letter of Credit; or (d) any other circumstances whatsoever contrary in making or failing to make payment under the Letter of Creditthis Agreement, except the Borrower shall have a claim against the Bank, and the Bank shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by person or entity relating to:
(i) the Bank's willful misconduct title, validity or gross negligence genuineness of any Property;
(ii) the legality or effectiveness of the purchase or delivery or transfer of any Property or the propriety of the price by which the same is acquired or sold;
(iii) the due authority of any Authorized Person to act on behalf of the Manager or the Customer with respect to the Property;
(iv) the due authority of the Customer to purchase or hold any Property;
(v) the accuracy or completeness of any data or information with respect to the Property which has been provided to the Bank by the Manager, the Customer or any third party at any time pursuant to this Agreement;
(vi) the collectibility, insurability, effectiveness, marketability or suitability of any Property;
(vii) the legal content of the provisions of any documentation provided to the Bank for custody with respect to the Property or the legal adequacy thereof or of any purported transfer thereof; or
(viii) the accuracy of any representation regarding the Customer or the Customer’s investment made in honoring a draft under any agreement or writing signed by Bank as custodian for the Letter of CreditCustomer.
(c) Notwithstanding anything in this Agreement to the contrary, the Bank shall not be liable for losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation: acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party.
(d) Notwithstanding anything in this Agreement to the contrary:
(i) neither the Bank nor its affiliates shall be liable for any consequential, special, or indirect losses or damages, including lost profits, whether or not the likelihood of such losses or damages was known by the Bank or its affiliates; and
(ii) the Bank's willful failure ’s cumulative liability to pay under the Letter Manager and the Customer for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever arising out of Credit after presentation or related to it this Agreement, and regardless of the form of action or legal theory, shall not exceed the lesser of $100,000 or the fees received by the Trustee Bank for services provided hereunder during the twelve (12) months immediately prior to the date of such loss or a successor trustee under damage.
(e) The Bank shall not be liable for any expense, loss, claim or damage, including counsel fees and expenses (other than such as may arise solely from the Indenture to whom Bank’s gross negligence or willful misconduct), which the Letter Manager, the Customer or any of Credit has been transferred in accordance with its terms) their officers, directors, employees, agents, affiliates or investors or any third party may suffer by reason of a sight draft and certificate strictly complying with any error by, or inaccuracy of, any price or valuation received by the terms and conditions Bank from any recognized pricing source, the Manager, the Customer, or any person (including the Bank or an affiliate of the Letter Bank) designated by the Manager, by the Customer or pursuant to Written Instructions to furnish such information, including any price or valuation resulting from any formula used to obtain such prices or valuations. The Bank shall have no duty to inquire into the appropriateness or relative change of Credit. In furtherance and not in limitation any price.
(f) No party may assert a cause of action against the Bank or any of its affiliates that allegedly occurred more than twelve (12) months immediately prior to the filing of the foregoingsuit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action.
(g) The Manager and the Customer shall have a duty to reasonably mitigate damages for which the Bank may accept documents that appear on their face become responsible under or related to be in order, and may assume the genuineness and rightfulness this Agreement. The provisions of any signature thereon, without responsibility for further investigation, regardless this Section 15 shall survive termination of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorthis Agreement.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the Borrower The Company assumes all risks of the acts or omissions of the Trustee Trustee, the Remarketing Agent, the Paying Agent or any agent of the Trustee, the Remarketing Agent or the Paying Agent and any transferee of the Letter of Credit with respect to its their use of the Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: for (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee in connection therewith; , (b) the validity, sufficiency validity or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) endorsement thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; , (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; , or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except however, that the Borrower Company shall have a claim against the Bank, and the Bank shall be liable to the BorrowerCompany, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower Company which the Borrower Company proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft determining whether documents presented under the Letter of Credit, Credit comply with the terms of the Letter of Credit or (ii) the Bank's willful wrongful failure to pay make lawful payment under the Letter of Credit after the presentation to it the Bank by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not Credit (it being understood that in limitation of making such payment the foregoing, Bank's exclusive reliance on the documents presented to the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to accordance with the terms of the Letter of Credit as to be any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of Credit proves to forged, fraudulent, invalid or insufficient in any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the Bank). The Bank are not is hereby expressly authorized and directed to be honoredhonor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between the Issuer, the Bank agrees that it will not honor such Company, the Remarketing Agent, the Trustee, the Paying Agent, or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcorrect.
Appears in 1 contract
Samples: Letter of Credit Agreement (Central Power & Light Co /Tx/)
Liability of the Bank. Between the Borrower and the Bank, the Borrower The Company assumes all risks of the acts or omissions of the Trustee and any transferee of the any Letter of Credit with respect to its use of the such Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers or directors No Indemnified Party shall be liable or responsible for: (a) the use which may be made of the any Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee in connection therewith; (b) the validity, sufficiency validity or genuineness of documentsdocuments tendered to or relied upon by the Bank, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the any Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the such Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the any Letter of Credit; provided, except however, that the Borrower shall have Company has a claim against the Bank, and the Bank shall be liable to the BorrowerCompany, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower Company which the Borrower Company proves were caused by (i) the Bank's ’s bad faith, willful misconduct or gross negligence in honoring a draft determining whether documents presented under the any Letter of CreditCredit comply with the terms of such Letter of Credit (it being understood by the parties hereto that in making payment under such Letter of Credit the Bank’s exclusive reliance on the documents presented to the Bank in accordance with the terms of such Letter of Credit as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to such Letter of Credit proves to be forged, fraudulent or invalid or any statement therein proves to be untrue or inaccurate in any respect whatsoever, shall not be deemed bad faith, willful misconduct or gross negligence of the Bank) or (ii) the Bank's willful ’s failure to pay make lawful payment under the any Letter of Credit after the presentation to it the Bank by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) Company of a sight draft and certificate strictly complying with the terms and conditions of the such Letter of Credit. In furtherance The Bank is hereby expressly authorized and not in limitation of the foregoing, the Bank may accept documents that appear on their face directed to be in order, and may assume the genuineness and rightfulness of honor any signature thereon, without responsibility demand for further investigation, regardless of payment which is made under any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower that documents conforming to the terms of the Letter of Credit without regard to, and without any duty on its part to be presented to inquire into the Bank are not to be honoredexistence of, any disputes or controversies among the Issuer, the Bank agrees that it will not honor Company or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under such documents Letter of Credit are true and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcorrect.
Appears in 1 contract
Samples: Collateralized Issuance and Reimbursement Agreement (McClatchy Co)
Liability of the Bank. Between The Borrower, to the Borrower and the Bankextent permitted by applicable law, the Borrower assumes all risks of the acts or omissions of the Trustee, the Credit Facility Trustee and any beneficiary or transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceedsCredit. Neither the Bank nor any of its officers officers, directors, employees, agents or directors consultants shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Credit Facility Trustee and or any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; 35
(c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in any way related to the making or failing failure to make payment under the Letter of Credit, ; except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, extent but only to the extent extent, of any direct, as opposed to consequential, consequential damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence of the Bank in honoring a draft determining whether documents presented under the Letter of Credit, Credit complied with the terms of the Letter of Credit or (ii) the Bank's willful failure of the Bank to pay under the Letter of Credit after the presentation to it by the Credit Facility Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcontrary.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Chesapeake Biological Laboratories Inc)
Liability of the Bank. Between the Borrower and the Bank, the Borrower (a) The Company assumes all risks of the acts or omissions of the Trustee Trustee, the Paying Agent and the Remarketing Agent and any transferee of the Letter of Credit beneficiary hereof with respect to its their use of the Letter of Credit or its proceedsproceeds hereof. Neither the Bank nor any of its officers officers, directors, employees or directors agents shall be liable or responsible for: for (ai) the use which may be made of the Letter of Credit or its proceeds hereof or for any acts or omissions of the Trustee and Trustee, the Paying Agent, the Remarketing Agent or any transferee in connection therewith; , (bii) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(sendorse- ment(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; , (ciii) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credithereof, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; this Agreement, or (div) any other circumstances whatsoever in making or failing to make payment under the Letter of Credithereunder, except only that the Borrower Company shall have a claim against the Bank, and the Bank shall be liable to the BorrowerCompany, to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower Company which the Borrower Company proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying determining whether documents presented hereunder comply with the terms and conditions of the Letter of Creditthis Agreement. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received contrary.
(b) The Bank may receive, accept and pay any demands or other documents and instruments (otherwise in order) signed by or issued to the receiver, trustee in bankruptcy or custodian of anyone named herein as the person by whom drafts, demands and other documents and instruments are to be made or issued.
(c) The Bank shall not have any liability to the Company for, and the Company hereby waives any right to object to, payment made hereunder against a demand containing non-substantive variations in punctuation, capitalization, spelling or similar matters. The determination whether a demand has been made before the expiration hereof and whether a demand is in proper and sufficient form for compliance herewith shall be made by the BankBank in its sole discretion, which determination shall be conclusive and binding upon the Company; provided, provided that if the Bank such determination shall receive written notification from both the Trustee and the Borrower that documents conforming to the terms not have constituted gross negligence or willful misconduct 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorBank.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement (North Atlantic Energy Corp /Nh)
Liability of the Bank. Between the Borrower and With respect to the Bank, the Borrower assumes any and all risks of with respect to the acts or omissions of each of the Trustee Trustee, the Paying Agent, the Remarketing Agent and any transferee of the Letter of Credit and any other Person in connection with respect to its or their use of the Letter of Credit or its proceedsof any amounts made available by the Bank thereunder. Neither the Bank Bank, its Affiliates or any Participant, nor any of its officers their respective officers, directors, employees or directors agents shall be liable or responsible forfor any of the following: (a) the use which that may be made of the Letter of Credit or its proceeds any amounts made available by the Bank thereunder or for any acts or omissions of the Trustee and Trustee, the Paying Agent, the Borrower, the Remarketing Agent or any transferee other Person in connection therewithwith the Letter of Credit or the use of its proceeds; (b) any of the acts, omissions, agreements, circumstances or conditions covered by the indemnification provided in Section 8.04 hereof, (c) any act or omission of the Bank; (d) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (ce) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (df) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except that, the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent extent, of any direct, as opposed to actual damages, but expressly not for any lost profits or any consequential, special, indirect or punitive damages (the right to recover or receive lost profits, consequential, special, indirect or punitive damages being hereby waived), suffered by the Borrower and not required to be mitigated by the Borrower, which the Borrower proves were direct, actual damages are determined by a final and nonappealable judgment of a court of competent jurisdiction to have been directly caused by (i) the Bank's ’s fraud, willful misconduct or gross negligence in honoring a draft determining whether documents presented under the Letter of Credit, Credit comply with the terms thereof or (ii) the Bank's ’s willful failure to pay under the Letter of Credit after the presentation to it by the Trustee or Paying Agent (or a successor trustee or Paying Agent under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions thereof; provided, however, that the maximum amount of damages recoverable by the Borrower as provided above is expressly limited to the stated amount of the Letter of CreditCredit as of the date of issuance thereof. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorcontrary.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Gevo, Inc.)
Liability of the Bank. Between the Borrower and the Bank, the The Borrower assumes all risks of the --------------------- acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit Credit; provided, however, this assumption with respect to the Bank is not intended to, and shall not, preclude the Borrower's pursuing such rights and remedies as it may have against the Trustee or its proceedsany transferee at law or under any other agreement. Neither the Bank nor any of its officers officers, employees, agents or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its proceeds or for any acts or omissions of the Trustee and any transferee of the Letter of Credit in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, except however, anything in the preceding clauses (a) (b), (c) and (d) to the contrary notwithstanding, the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent extent, of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bankcontrary; provided, however, that if the Bank shall receive -------- ------- written notification at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, Attention: Letter of Credit Department (with a copy to the Bank at 000 X Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attn: Commercial Markets Group) from both the Trustee and the Borrower that documents conforming to sufficiently identified (in the terms reasonable opinion of the Letter of Credit Bank) documents to be presented to the Bank are not to be honored, the Bank agrees that that, upon being indemnified to its satisfaction by the Trustee and the Borrower, it will not honor such documents and the Borrower shall indemnify and hold the Bank harmless from such failure to honorthereafter.
Appears in 1 contract
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may The Bank shall not be made of the Letter of Credit or its proceeds or liable for any acts action taken or omissions omitted by it except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Trustee Bank’s gross negligence or willful misconduct was the direct cause of any loss to the Customer, and any transferee subject to the limitations set forth in connection therewith; Section 15(d) of this Agreement.
(b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference Notwithstanding anything to the Letter of Credit; or (d) any other circumstances whatsoever contrary in making or failing to make payment under the Letter of Creditthis Agreement, except the Borrower shall have a claim against the Bank, and the Bank shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by person or entity relating to:
(i) the Bank's willful misconduct title, validity or gross negligence genuineness of any Property; 12
(ii) the legality or effectiveness of the purchase or delivery or transfer of any Property or the propriety of the price by which the same is acquired or sold;
(iii) the due authority of any Authorized Person to act on behalf of the Manager or the Customer with respect to the Property;
(iv) the due authority of the Customer to purchase or hold any Property;
(v) the accuracy or completeness of any data or information with respect to the Property which has been provided to the Bank by the Manager, the Customer or any third party at any time pursuant to this Agreement;
(vi) the collectibility, insurability, effectiveness, marketability or suitability of any Property;
(vii) the legal content of the provisions of any documentation provided to the Bank for custody with respect to the Property or the legal adequacy thereof or of any purported transfer thereof; or
(viii) the accuracy of any representation regarding the Customer or the Customer’s investment made in honoring a draft under any agreement or writing signed by Bank as custodian for the Letter of CreditCustomer.
(c) Notwithstanding anything in this Agreement to the contrary, the Bank shall not be liable for losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation: acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party.
(d) Notwithstanding anything in this Agreement to the contrary:
(i) neither the Bank nor its affiliates shall be liable for any consequential, special, or indirect losses or damages, including lost profits, whether or not the likelihood of such losses or damages was known by the Bank or its affiliates; and
(ii) the Bank's willful failure ’s cumulative liability to pay under the Letter Manager and the Customer for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever arising out of Credit after presentation or related to it this Agreement, and regardless of the form of action or legal theory, shall not exceed the lesser of $100,000 or the fees received by the Trustee Bank for 13 services provided hereunder during the twelve (12) months immediately prior to the date of such loss or a successor trustee under damage.
(e) The Bank shall not be liable for any expense, loss, claim or damage, including counsel fees and expenses (other than such as may arise solely from the Indenture to whom Bank’s gross negligence or willful misconduct), which the Letter Manager, the Customer or any of Credit has been transferred in accordance with its terms) their officers, directors, employees, agents, affiliates or investors or any third party may suffer by reason of a sight draft and certificate strictly complying with any error by, or inaccuracy of, any price or valuation received by the terms and conditions Bank from any recognized pricing source, the Manager, the Customer, or any person (including the Bank or an affiliate of the Letter Bank) designated by the Manager, by the Customer or pursuant to Written Instructions to furnish such information, including any price or valuation resulting from any formula used to obtain such prices or valuations. The Bank shall have no duty to inquire into the appropriateness or relative change of Credit. In furtherance and not in limitation any price.
(f) No party may assert a cause of action against the Bank or any of its affiliates that allegedly occurred more than twelve (12) months immediately prior to the filing of the foregoingsuit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action.
(g) The Manager and the Customer shall have a duty to reasonably mitigate damages for which the Bank may accept documents that appear on their face become responsible under or related to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honorthis Agreement.
Appears in 1 contract
Samples: Custodial Agreement (PARADIGM Multi Strategy Fund, LLC)
Liability of the Bank. Between the Borrower and the Bank, the Borrower assumes all risks of the acts or omissions of the Trustee and any transferee of the Letter of Credit with respect to its use of the Letter of Credit or its proceeds. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) the use which may be made of the Letter of Credit or its any of the proceeds thereof, or for any acts or omissions of the Trustee and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, inaccuracy of any of the statements or representations contained therein or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) good faith payment by the Bank against presentation of documents which do not strictly comply with the terms of the Letter of Credit, including any failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except the Borrower shall have a claim against the Bank, and the Bank shall be liable to the Borrower, to the extent, but only to the extent of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (i) the Bank's willful misconduct or gross negligence in honoring a draft under the Letter of Credit, or (ii) the Bank's willful failure to pay under the Letter of Credit after presentation to it by the Trustee (or a successor trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or information to the contrary unless actually received by the Bank; provided, that if the Bank shall receive written notification from both the Trustee and the Borrower 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 and the Borrower shall indemnify and hold the Bank harmless from such failure to honor.
Appears in 1 contract
Samples: Reimbursement Agreement (Core Molding Technologies Inc)
