Liability of the Bank. (a) The liability of the Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction 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. (a) The liability Between the Borrower and the Bank, the Borrower assumes all risks of the Bank (acts or omissions of the Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Creditits proceeds. In no event shall Neither the Bank nor any of its officers or directors shall be deemed to have failed to act with due diligence liable or reasonable care if responsible for: (a) the Bank’s conduct is in accordance with Standard Letter use which may be made of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 its proceeds or for any punitive, consequential, indirect acts or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised omissions of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid Trustee and mitigate the amount of any 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, inaccuracy of any other provision of this Agreementthe 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 against presentation of documents which do 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 Credit which on its face substantially complies strictly comply with the terms of the Letter of Credit; (ii) honor of a presentation , including any failure of any Drawing Documents which appear on their face documents 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; or (ivd) 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 identity Bank's willful misconduct or authority gross negligence in honoring a draft under the Letter of any presenter or signer of any Drawing Document or the form, accuracy, genuinenessCredit, or legal effect of any presentation (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 any Drawing Documents; (vCredit has been transferred in accordance with its terms) disregard of any non-documentary a sight draft and certificate strictly complying with the terms and conditions stated in of the Letter of Credit; (vi) acting upon any Instruction which it. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in Good Faithorder, 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 and may assume the genuineness and rightfulness of any messagesignature thereon, advice or document (without responsibility for further investigation, regardless of how sent any notice or transmitted) or for errors in interpretation of technical terms or in translationinformation to the contrary unless actually received by the Bank; (viii) any delay in giving or failing to give any notice; (ix) any actsprovided, omissions or fraud by, or that if the solvency of, any beneficiary, any nominated Person or any other Person; (x) any breach of contract between Bank shall receive written notification from both the beneficiary Trustee and the Applicant or any of the parties Borrower that documents conforming to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by the terms of the Letter of Credit) claiming Credit to be presented to the Bank are not to be honored, the Bank agrees 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 will not honor such documents and the Applicant is unable or unwilling to reimburse or Borrower shall indemnify and hold the Bank (provided that the Applicant acknowledges that if the Bank shall later be required harmless from such failure to honor the presentation, the 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 conduct of the transaction concernedhonor.
Appears in 2 contracts
Samples: Letter of Credit Reimbursement Agreement (Spurlock Industries Inc), Reimbursement Agreement (Dynamic Materials Corp)
Liability of the Bank. (a) The liability Company shall hold the Bank harmless from the acts or omissions of the Bank (or Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit; 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: (iii) failing to honor a presentation that strictly complies with the use which may be made of the Letter of Credit or (iii) retaining Drawing Documents presented under for any acts or omissions of the Letter of Credit. In no event shall the Bank 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 Trustee and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 transferee in connection 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 therewith; (ii) the amount validity, sufficiency or genuineness of the loss that would have been avoided had the Applicant mitigated damages.
documents, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respect invalid, insufficient, fraudulent or forged; (biii) Without limiting any other provision of this Agreement, payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including but not limited to failure of any Drawing Documents which appear on their face documents 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; or (iv) any other circumstances, whatsoever in making or failing to make payment under the identity or authority Letter of Credit, except only that the Company shall have a claim against the Bank, and the Bank shall be, liable to the Company, to the extent, but only to the extent, of any presenter direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (A) the Bank misconduct or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation negligence in determining whether documents presented under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by comply with the terms of the Letter of CreditCredit or (B) claiming that it rightfully honored the Bank's willful or is entitled negligent failure to reimbursement or indemnity pay under Standard the Letter of Credit Practice; after the presentation to it by the Trustee (xiiior a successor Trustee under the Indenture to whom the Letter of Credit has been transferred in accordance with its terms) dishonor 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 without responsibility for further investigation, regardless of any presentation upon notice or during any Event of Default or for which information to the Applicant is unable or unwilling to reimburse or indemnify the Bank (contrary; provided that the Applicant acknowledges that that, if the Bank shall later receive written notification from the Trustee that sufficiently identifies (in the opinion of the Bank) documents to be required presented to honor the presentationBank which are not to be honored, the 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 conduct of the transaction concernedBank agrees that it will not honor such documents.
Appears in 1 contract
Liability of the Bank. (a) The liability Between the Borrower and the Bank, the Borrower assumes all risks of the Bank (acts or omissions of the Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Creditits proceeds. In no event shall Neither the Bank nor any of its officers or directors shall be deemed to have failed to act with due diligence liable or reasonable care if responsible for: (a) the Bank’s conduct is in accordance with Standard Letter use which may be made of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed any of the aggregate amount paid by the Applicant to the Bank in respect of an honored presentation under the Letter of Creditproceeds thereof, plus interest. Notwithstanding anything to the contrary herein, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable or for any punitive, consequential, indirect acts or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised omissions of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid Trustee and mitigate the amount of any 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, inaccuracy of any other provision of this Agreementthe 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) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies strictly comply with the terms of the Letter of Credit; (ii) honor of a presentation , including any failure of any Drawing Documents which appear on their face documents 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; or (ivd) 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 identity Bank's willful misconduct or authority gross negligence in honoring a draft under the Letter of any presenter or signer of any Drawing Document or the form, accuracy, genuinenessCredit, or legal effect of any presentation (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 any Drawing Documents; (vCredit has been transferred in accordance with its terms) disregard of any non-documentary a sight draft and certificate strictly complying with the terms and conditions stated in of the Letter of Credit; (vi) acting upon any Instruction which it. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in Good Faithorder, 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 and may assume the genuineness and rightfulness of any messagesignature thereon, advice or document (without responsibility for further investigation, regardless of how sent any notice or transmitted) or for errors in interpretation of technical terms or in translationinformation to the contrary unless actually received by the Bank; (viii) any delay in giving or failing to give any notice; (ix) any actsprovided, omissions or fraud by, or that if the solvency of, any beneficiary, any nominated Person or any other Person; (x) any breach of contract between Bank shall receive written notification from both the beneficiary Trustee and the Applicant or any of the parties Borrower that documents conforming to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by the terms of the Letter of Credit) claiming that it rightfully honored or is entitled Credit 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 be presented to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerned.the
Appears in 1 contract
Liability of the Bank. (a) The liability Between the Borrower and the Bank, --------------------- the Borrower assumes all risks of the Bank (acts or omissions of the Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Creditits proceeds. In no event shall Neither the Bank nor any of its officers or directors shall be deemed to have failed to act with due diligence liable or reasonable care if responsible for: (a) the Bank’s conduct is in accordance with Standard Letter use which may be made of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed any of the aggregate amount paid by the Applicant to the Bank in respect of an honored presentation under the Letter of Creditproceeds thereof, plus interest. Notwithstanding anything to the contrary herein, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable or for any punitive, consequential, indirect acts or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised omissions of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid Trustee and mitigate the amount of any 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, inaccuracy of any other provision of this Agreementthe 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) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies strictly comply with the terms of the Letter of Credit; (ii) honor of a presentation , including any failure of any Drawing Documents which appear on their face documents 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; or (ivd) 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 identity Bank's willful misconduct or authority 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 presenter or signer signature thereon, without responsibility for further investigation, regardless of any Drawing Document notice or information to the formcontrary unless actually received by the Bank; provided, accuracythat 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, genuinenessthe 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 legal effect liability is asserted against Bank arising in any manner from the issuance, presentation or acceptance of any presentation 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 Drawing Documents; (v) disregard of any non-documentary conditions loss or damage, including without limitation, reasonable attorneys' fees and costs, except for Bank's obligations stated in the Letter of Credit; (vi) acting upon 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 Instruction which it, in Good Faith, believes to have been given by a Person payment under 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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 termination of this Section 7.5(b), “Good Faith” means honesty in fact in the conduct of the transaction concernedReimbursement Agreement.
Appears in 1 contract
Liability of the Bank. The Authority and the Tender Agent agree that the Bank shall have no liability or responsibility for the acts or omissions of the Remarketing Agent, the Authority or the Tender Agent in respect of the use of this Agreement or any amounts made available by the 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 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 to 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 liability the use which may be made of this Agreement or any amounts made available by the Bank hereunder or for any acts or omissions of the Bank Tender Agent or the Remarketing Agent or their agents in connection therewith; (b) the validity, sufficiency or genuineness of documents, 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) any other Indemnified Person) under, circumstances whatsoever in connection with and/or arising out of making or failing to make payment under this Agreement, any Related Document or except only that the Letter of Credit (or any pre-advice), regardless of Authority shall have a claim against the form or legal grounds of Bank and the action or proceeding, Bank shall be limited liable to the Authority to the extent of any direct direct, as distinguished from consequential, damages suffered by the Applicant Authority when the Authority proves in a final, non-appealable judgment that are such direct damages were caused directly by Bank’s gross negligence or willful misconduct in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation willful failure to purchase Tendered Bonds when required under the Letter terms and conditions of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid this Agreement after presentation to it by the Applicant to Tender Agent of a notice strictly complying with the Bank terms and conditions hereof or were caused by the gross negligence of the Bank. In furtherance and not in respect limitation of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary hereinforegoing, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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 accept documents that would have been avoided had the Applicant mitigated damages.
(b) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any Drawing Documents which appear on their face to have been signedbe in order, presented or issued (X) by any purported successor or transferee without responsibility for further investigation, regardless of any beneficiary notice 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 or adequate reference information to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedcontrary.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. (a) The liability As between the Borrower, on the one hand and the Bank and the Bank Participants, on the other hand, the Borrower assumes all risks of the Bank (acts or omissions of the Bond Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit. None of the Bank, the Bank Participants nor any of their respective officers or directors shall be liable or responsible for: (iia) failing to honor a presentation that strictly complies with the use which may be made of the Letter of Credit or (iii) retaining Drawing Documents presented under for any acts or omissions of the Letter of Credit. In no event shall the Bank 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 Bond Trustee and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, or of any other provision of this Agreementendorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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; or (ivd) 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, of any direct, as opposed to consequential or punitive, damages suffered by the Borrower to the extent to which the Borrower proves were caused by (i) the identity Bank’s willful misconduct or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation gross negligence in determining whether documents presented under the Letter of Credit comply with the terms thereof or of any Drawing Documents; (vii) disregard of any non-documentary conditions stated in the Bank’s willful or grossly negligent failure to pay under the Letter of CreditCredit after the presentation to it by the Bond Trustee of a sight draft and certificate strictly complying with the terms and conditions thereof; (vi) acting upon any Instruction which it, in Good Faith, believes to have been given provided that the maximum amount of damages recoverable 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 the Applicant or any of the parties Borrower as provided above is expressly limited to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by the terms Stated Amount of the Letter of Credit) claiming . In furtherance and not in limitation of the foregoing, the Bank and the Bank Participants may accept documents that it rightfully honored appear on their face to be in order, without responsibility for further investigation, regardless of any notice or is entitled information to reimbursement or indemnity the contrary. The Bank shall not be liable in any way for any failure on its part to honor any draft under Standard the Letter of Credit Practice; (xiii) dishonor as a result of any presentation upon act or during omission (whether rightful or wrongful) of any Event of Default Governmental Authority or for which any other cause beyond the Applicant is unable or unwilling to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct control of the transaction concernedBank.
Appears in 1 contract
Liability of the Bank. (a) The liability Between the Borrower and the Bank, the Borrower assumes all risks of the Bank (acts or omissions of the Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Creditits proceeds. In no event shall Neither the Bank nor any of its officers or directors shall be deemed to have failed to act with due diligence liable or reasonable care if responsible for: (a) the Bank’s conduct is in accordance with Standard Letter use which may be made of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed any of the aggregate amount paid by the Applicant to the Bank in respect of an honored presentation under the Letter of Creditproceeds thereof, plus interest. Notwithstanding anything to the contrary herein, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable or for any punitive, consequential, indirect acts or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised omissions of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid Trustee and mitigate the amount of any 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, inaccuracy of any other provision of this Agreementthe 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) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies strictly comply with the terms of the Letter of Credit; (ii) honor of a presentation , including any failure of any Drawing Documents which appear on their face documents 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; or (ivd) 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 identity Bank's willful misconduct or authority gross negligence in honoring a draft under the Letter of any presenter or signer of any Drawing Document or the form, accuracy, genuinenessCredit, or legal effect of any presentation (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 any Drawing Documents; (vCredit has been transferred in accordance with its terms) disregard of any non-documentary a sight draft and certificate strictly complying with the terms and conditions stated in of the Letter of Credit; (vi) acting upon any Instruction which it. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in Good Faithorder, 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 and may assume the genuineness and rightfulness of any messagesignature thereon, advice or document (without responsibility for further investigation, regardless of how sent any notice or transmitted) or for errors in interpretation of technical terms or in translationinformation to the contrary unless actually received by the Bank; (viii) any delay in giving or failing to give any notice; (ix) any actsprovided, omissions or fraud by, or that if the solvency of, any beneficiary, any nominated Person or any other Person; (x) any breach of contract between Bank shall receive written notification from both the beneficiary Trustee and the Applicant or any of the parties Borrower that documents conforming to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by the terms of the Letter of Credit) claiming Credit to be presented to the Bank are not to be honored, the Bank agrees 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 will not honor such documents and the Applicant is unable or unwilling to reimburse or Borrower shall indemnify and hold the Bank (provided that the Applicant acknowledges that if the Bank shall later be required harmless from such failure to honor the presentation, the 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 conduct of the transaction concernedhonor.
Appears in 1 contract
Samples: Reimbursement Agreement (Core Molding Technologies Inc)
Liability of the Bank. The CSD Member agrees and acknowledges that:-
(a) The liability of the Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents its servants and agents 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, not be liable for any punitiveliability, consequentialclaim, indirect loss, damage or special damages expense of any kind or losses regardless of whether nature caused directly or indirectly by the operation by the Bank of the CSD Dealing Service or any Indemnified Person shall have been advised part thereof (including the safe custody of CSD Instruments) or any inadequacy thereof for any purposes or 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 possibility thereof 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 form foregoing by reason of action in which machine or computer malfunction or error and also any suspension or variation pursuant to clause 5(3) save to the extent that such damages liability, claim, loss, damage or losses may be claimed. The Applicant 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 CSD Member shall take action to avoid and mitigate the amount of any damages claimed against indemnify the Bank and its servants and agents against all expenses, claims, damages and liabilities whatsoever arising directly or any Indemnified Person, including by enforcing its rights in indirectly from the underlying transaction. Any claim by the Applicant for damages under or actions and/or omissions in connection with this Agreementthe CSD Dealing Service of the CSD Member, any Related Document every person for whom the CSD Member acts as agent or nominee, the CSD Member's settlement bank or the Letter CSD Member's servants or agents (whether or not authorized by the CSD Member) and/or any failure of Credit shall be reduced by an amount equal 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 sum 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;
(ic) the amount saved by Bank shall execute or otherwise act upon valid instructions or information received through the Applicant 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 the breach such execution or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.action;
(bd) Without limiting notwithstanding any checks or other provision of this Agreement, investigations which the Bank and each other Indemnified Person (if applicable), shall not be responsible may carry out with respect to the Applicant forgenuineness, and validity or completeness of any CSD Instrument being held in the Bank’s rights and remedies against CSD Dealing Service, or of any signature appearing on any such CSD Instrument, or as the Applicant and validity of any disposition of any such CSD Instrument with the Applicant’s obligation to reimburse details specified in respect of that CSD Instrument in the CSD Dealing Service, the Bank shall not be impaired by: (i) honor of a presentation under the Letter of Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference liability to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 CSD Member or any other Person; (x) any breach of contract between the beneficiary and the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver person as a result of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour actual or place; (xii) payment alleged defect or irregularity with respect to any paying or negotiating bank (designated or permitted by such CSD Instrument, 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 reimburse or 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;
(provided that e) the Applicant acknowledges that if Bank gives no representation as to the credit worthiness of any CSD Member or any other person who may be or become liable upon a CSD Instrument and in particular the Bank shall later be required not incur any liability to honor the presentation, the Applicant shall be liable therefore in accordance with Article 2 hereof); and (xiv) acting a CSD Member or failing any other person as a result of any failure by any such CSD Member or other person 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 conduct of the transaction concernedpay for a CSD Instrument.
Appears in 1 contract
Samples: CSD Dealing Agreement
Liability of the Bank. (a) The liability Company assumes all risks of the Bank (acts or omissions of the Trustee, the Remarketing Agent, the Paying Agent or any other Indemnified Person) underagent of the Trustee, in connection with and/or arising out the Remarketing Agent or the Paying Agent and any transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to their use 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 the Letter of Credit, . Neither the Bank nor any of its officers or directors shall be liable or responsible for (iia) failing to honor a presentation that strictly complies with the use of the Letter of Credit or (iii) retaining Drawing Documents presented under for any acts or omissions of the Letter of Credit. In no event shall the Bank 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 Trustee and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 transferee in connection with this Agreementtherewith, 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) Without limiting the validity or genuineness of documents, or of any other provision of this Agreementendorsement thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, (c) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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, or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, however, that the Company shall have a claim against the Bank, and the Bank shall be liable to the Company, to the extent of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (ivi) the identity Bank's willful misconduct or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation gross negligence in determining whether documents presented under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by comply with the terms of the Letter of CreditCredit or (ii) claiming that it rightfully honored the Bank's willful or is entitled grossly negligent failure to reimbursement or indemnity make lawful payment under Standard the Letter of Credit Practice; (xiii) dishonor of any after the presentation upon or during any Event of Default or for which the Applicant is unable or unwilling to reimburse or indemnify the Bank by the Trustee or a successor trustee under the Indenture of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit (provided it being understood that in making such payment the Applicant acknowledges that if Bank's exclusive reliance on the documents presented to the Bank shall later be required to honor the presentation, the Applicant shall be liable therefore in accordance with Article 2 hereof); and (xiv) acting or failing to act as required or permitted under Standard the terms of the Letter of Credit Practice. For purposes as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of this Section 7.5(b)Credit proves to forged, “Good Faith” means honesty fraudulent, invalid or insufficient in fact in the conduct any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the transaction concernedBank). 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 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 correct.
Appears in 1 contract
Samples: Letter of Credit Agreement (Central Power & Light Co /Tx/)
Liability of the Bank. (a) The liability Bank shall not be liable for any action taken or omitted by it except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any 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 was the direct cause of any loss to the Customer, and subject to the limitations set forth in (iSection 15(d) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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. .
(b) Notwithstanding anything to the contrary hereinin this Agreement, the Bank shall be under no obligation to inquire into and the other Indemnified Persons shall not, under any circumstances whatsoever, not be liable for any punitivedamages, other liabilities or harm to any person or entity relating to:
(i) the title, validity or 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 any agreement or writing signed by Bank as custodian for the Customer.
(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 special damages, including lost profits, whether or not the likelihood of such losses or damages or losses regardless of whether was known by the Bank or its affiliates; and
(ii) the Bank’s cumulative liability to the Manager and the Customer for all losses, claims, suits, controversies, breaches, or damages for any Indemnified Person shall have been advised cause whatsoever arising out of the possibility thereof or related to this Agreement, and regardless of the form of action in or legal theory, shall not exceed the lesser of $100,000 or the fees received by the Bank for services provided hereunder during the twelve (12) months immediately prior to the date of such loss or 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 Bank’s gross negligence or willful misconduct), which the Manager, the Customer or any of their officers, directors, employees, agents, affiliates or investors or any third party may suffer by reason of any error by, or inaccuracy of, any price or valuation received by the Bank from any recognized pricing source, the Manager, the Customer, or any person (including the Bank or an affiliate of the Bank) designated by the Manager, by the Customer or pursuant to Written Instructions to furnish such damages information, including any price or losses may be claimedvaluation resulting from any formula used to obtain such prices or valuations. The Applicant Bank shall take action have no duty to avoid and mitigate inquire into the amount appropriateness or relative change of any damages claimed price.
(f) No party may assert a cause of action against the Bank or any Indemnified Person, including by enforcing of its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal affiliates that allegedly occurred more than twelve (12) months immediately prior to the sum of (i) the amount saved by the Applicant as a result filing of the breach or alleged wrongful conduct and suit (iior, if applicable, commencement of arbitration proceedings) the amount alleging such cause of the loss that would have been avoided had the Applicant mitigated damagesaction.
(bg) Without limiting any other provision The Manager and the Customer shall have a duty to reasonably mitigate damages for which the Bank may become responsible under or related to this Agreement. The provisions of this Section 15 shall survive termination of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerned.
Appears in 1 contract
Liability of the Bank. (a) The liability Company assumes all risks of the Bank (acts or omissions of the Trustee, the Remarketing Agent, the Paying Agent or any other Indemnified Person) underagent of the Trustee, in connection with and/or arising out the Remarketing Agent or the Paying Agent and any transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to their use 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 the Letter of Credit, . Neither the Bank nor any of its officers or directors shall be liable or responsible for (iia) failing to honor a presentation that strictly complies with the use of the Letter of Credit or (iii) retaining Drawing Documents presented under for any acts or omissions of the Letter of Credit. In no event shall the Bank 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 Trustee and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 transferee in connection with this Agreementtherewith, 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) Without limiting the validity or genuineness of documents, or of any other provision of this Agreementendorsement thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, (c) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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, or (d) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, however, that the Company shall have a claim against the Bank, and the Bank shall be liable to the Company, to the extent of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (ivi) the identity Bank's willful misconduct or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation gross negligence in determining whether documents presented under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by comply with the terms of the Letter of CreditCredit or (ii) claiming that it rightfully honored or is entitled the Bank's wrongful failure to reimbursement or indemnity make lawful payment under Standard the Letter of Credit Practice; (xiii) dishonor of any after the presentation upon or during any Event of Default or for which the Applicant is unable or unwilling to reimburse or indemnify the Bank by the Trustee or a successor trustee under the Indenture of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit (provided it being understood that in making such payment the Applicant acknowledges that if Bank's exclusive reliance on the documents presented to the Bank shall later be required to honor the presentation, the Applicant shall be liable therefore in accordance with Article 2 hereof); and (xiv) acting or failing to act as required or permitted under Standard the terms of the Letter of Credit Practice. For purposes as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of this Section 7.5(b)Credit proves to forged, “Good Faith” means honesty fraudulent, invalid or insufficient in fact in the conduct any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the transaction concernedBank). 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 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 correct.
Appears in 1 contract
Samples: Letter of Credit Agreement (Central Power & Light Co /Tx/)
Liability of the Bank. (a) The liability Company assumes all risks of the acts or omissions of the Trustee, the Paying Agent and the Remarketing Agent and any transferee beneficiary hereof with respect to their use of the proceeds hereof. Neither the Bank nor any of its officers, directors, employees or agents shall be liable or responsible for (i) the use which may be made of the proceeds hereof or for any acts or omissions of the Trustee, the Paying Agent, the Remarketing Agent or any other Indemnified Person) under, transferee in connection therewith, (ii) the validity, sufficiency or genuineness of documents, or of any endorse- ment(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged, (iii) payment by the Bank against presentation of documents which do not comply with and/or arising out the terms hereof, including failure of any documents to bear any reference or adequate reference to this Agreement, or (iv) any Related Document other circumstances whatsoever in making or failing to make payment hereunder, except only that the Letter of Credit (or any pre-advice)Company shall have a claim against the Bank, regardless of and the form or legal grounds of the action or proceeding, Bank shall be limited liable to the Company, to the extent, but only to the extent, of any direct direct, as opposed to consequential, damages suffered by the Applicant Company which the Company proves were caused by the Bank's willful misconduct or gross negligence in determining whether documents presented hereunder comply with the terms of this Agreement. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
(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 caused directly 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 Bank’s the Bank in its sole discretion, which determination shall be conclusive and binding upon the Company; provided that such determination shall not have constituted gross negligence or willful misconduct in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerned.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement (North Atlantic Energy Corp /Nh)
Liability of the Bank. (a) The liability Authority assumes all risks of the acts or omissions of the Issuing and Paying Agent and the Dealer with respect to the proceeds of any Drawing or Advance. Neither the Bank nor any of its officers, directors, employees or agents shall be liable or responsible for (i) the use which may be made of the proceeds of any Drawing, Advance or Term Loan or of any acts or omissions of the Issuing and Paying Agent, the Dealer or any transferee in connection therewith, (ii) the validity, sufficiency or genuineness of documents, or of any endorsements 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, (iii) the lack of validity or enforceability of the Notes, the Resolution, the Issuing and Paying Agency Agreement, the other Transaction Documents or any other Indemnified Personagreement or instrument relating thereto (other than the validity or enforceability as against the Bank of any agreement to which the Bank is a party), or (iv) under, any other circumstances whatsoever in connection with and/or arising out of making or failing to make payment under this Agreement; provided, any Related Document or that the Letter of Credit (or any pre-advice)Authority shall have a claim against the Bank, regardless of and the form or legal grounds of the action or proceeding, Bank shall be limited liable to the Authority, to the extent of any direct direct, as opposed to consequential, damages suffered by the Applicant that are Authority which the Authority proves were caused directly by the Bank’s gross negligence or willful misconduct or negligence in (i) honoring a presentation that does not at least substantially comply with determining whether documents presented under the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Standby Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies complied with the terms of the Standby Letter of Credit; Credit (ii) honor 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 a presentation the Standby Letter of Credit as to any Drawing Documents which 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 of the Bank). In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to have been signedbe in order, presented or issued (X) by any purported successor or transferee without responsibility for further investigation, regardless of any beneficiary notice or information (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 or adequate reference than actual knowledge to the Letter of Credit; (ivcontrary) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedcontrary.
Appears in 1 contract
Samples: Standby Letter of Credit and Reimbursement Agreement
Liability of the Bank. (a) The liability Borrower, to the extent permitted by applicable law, assumes all risks of the Bank (acts or omissions of the Trustee, the Credit Facility Trustee and any other Indemnified Person) under, in connection with and/or arising out beneficiary or transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit. Neither the Bank nor any of its officers, directors, employees, agents or consultants shall be liable or responsible for: (iia) failing to honor a presentation that strictly complies with the use which may be made of the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect acts or special damages or losses regardless omissions of whether the Bank Credit Facility Trustee or any Indemnified Person shall have been advised of the possibility thereof beneficiary 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 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 transferee in connection 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.
therewith; (b) Without limiting the validity, sufficiency or genuineness of documents, or of any other provision of this Agreementendorsement(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) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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; or (ivd) any other circumstances whatsoever in any way related to the identity making or authority 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 but only to the extent, of any presenter direct, as opposed to consequential damages suffered by the Borrower which the Borrower proves were caused by (i) willful misconduct or signer gross negligence of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation Bank in determining whether documents presented under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by complied with the terms of the Letter of CreditCredit or (ii) claiming that it rightfully honored or is entitled willful failure of the Bank to reimbursement or indemnity pay under Standard the Letter of Credit Practice; (xiii) dishonor after the presentation to it by the Credit Facility Trustee or a successor trustee under the Indenture 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, without responsibility for further investigation, regardless of any presentation upon notice or during any Event of Default or for which information to the Applicant is unable or unwilling to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedcontrary.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Chesapeake Biological Laboratories Inc)
Liability of the Bank. (a) The liability Bank shall not be liable for any action taken or omitted by it except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any 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 was the direct cause of any loss to the Customer, and subject to the limitations set forth in (iSection 15(d) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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. .
(b) Notwithstanding anything to the contrary hereinin this Agreement, the Bank shall be under no obligation to inquire into and the other Indemnified Persons shall not, under any circumstances whatsoever, not be liable for any punitivedamages, other liabilities or harm to any person or entity relating to:
(i) the title, validity or 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 any agreement or writing signed by Bank as custodian for the Customer.
(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 special damages, including lost profits, whether or not the likelihood of such losses or damages or losses regardless of whether was known by the Bank or its affiliates; and
(ii) the Bank’s cumulative liability to the Manager and the Customer for all losses, claims, suits, controversies, breaches, or damages for any Indemnified Person shall have been advised cause whatsoever arising out of the possibility thereof or related to this Agreement, and regardless of the form of action in or legal theory, shall not exceed the lesser of $100,000 or the fees received by the Bank for 13 services provided hereunder during the twelve (12) months immediately prior to the date of such loss or 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 Bank’s gross negligence or willful misconduct), which the Manager, the Customer or any of their officers, directors, employees, agents, affiliates or investors or any third party may suffer by reason of any error by, or inaccuracy of, any price or valuation received by the Bank from any recognized pricing source, the Manager, the Customer, or any person (including the Bank or an affiliate of the Bank) designated by the Manager, by the Customer or pursuant to Written Instructions to furnish such damages information, including any price or losses may be claimedvaluation resulting from any formula used to obtain such prices or valuations. The Applicant Bank shall take action have no duty to avoid and mitigate inquire into the amount appropriateness or relative change of any damages claimed price.
(f) No party may assert a cause of action against the Bank or any Indemnified Person, including by enforcing of its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal affiliates that allegedly occurred more than twelve (12) months immediately prior to the sum of (i) the amount saved by the Applicant as a result filing of the breach or alleged wrongful conduct and suit (iior, if applicable, commencement of arbitration proceedings) the amount alleging such cause of the loss that would have been avoided had the Applicant mitigated damagesaction.
(bg) Without limiting any other provision of this Agreement, the Bank and each other Indemnified Person (if applicable), shall not be responsible to the Applicant for, The Manager and the Bank’s rights and remedies against the Applicant and the Applicant’s obligation Customer shall have a duty to reimburse the Bank shall not be impaired by: (i) honor of a presentation under the Letter of Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reasonably mitigate damages for which the Applicant is unable Bank may become responsible under or unwilling related to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedAgreement.
Appears in 1 contract
Samples: Custodial Agreement (PARADIGM Multi Strategy Fund, LLC)
Liability of the Bank. (a) The liability Without waiving, for purposes of this Section, any legal right against parties other than the Bank, the Borrower assumes all risks of the Bank (acts or omissions of the Trustee and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use 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 the Letter of Credit. Neither the Bank nor any of its officers, directors, employees or agents shall be liable or responsible for: (iii) failing to honor a presentation that strictly complies with the use which may be made of the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank be deemed to have failed to act with due diligence by 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect acts or special damages or losses regardless omissions of whether the Bank Trustee or any Indemnified Person shall have been advised of the 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 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 transferee in connection 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 therewith; (ii) the amount validity, sufficiency or genuineness of the loss that would have been avoided had the Applicant mitigated damages.
drafts, certificates or documents, 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; (biii) Without limiting any other provision of this Agreement, payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of drafts or certificates which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 (Yiv) under a new name of the beneficiary; (iii) acceptance as a draft of any written other circumstances whatsoever in making or electronic demand or request for failing to make payment under the Letter of Credit, even if nonnegotiable or not in except only that the form of Borrower shall have a draftclaim against the Bank, and may disregard any requirement that such draft, demand or request bear any or adequate reference the Bank shall be liable to the Letter Borrower to the extent, but only to the extent, of Credit; any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by (ivi) the identity Bank's willful misconduct or authority of any presenter gross negligence in determining whether drafts, certificates or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation documents presented under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by complied with the terms of the Letter of CreditCredit or (ii) claiming that it rightfully honored or is entitled the Bank's wrongful and willful failure to reimbursement or indemnity pay under Standard the Letter of Credit Practice; after the presentation to it by the Trustee (xiii) dishonor or a successor Trustee under the Indenture to whom the Letter of any presentation upon or during any Event of Default or for which the Applicant is unable or unwilling to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the Applicant shall be liable therefore Credit has been transferred in accordance with Article 2 hereof); its terms) of drafts, certificates or documents strictly complying with the terms and (xiv) acting or failing to act as required or permitted under Standard conditions of the Letter of Credit Practice. For purposes of this Section 7.5(b), “Good Faith” means honesty (it being understood that in fact making such payment the Bank's exclusive reliance on the documents presented to the Bank in accordance with the conduct terms of the transaction concernedLetter 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 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 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 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 correct.
Appears in 1 contract
Samples: Reimbursement Agreement (Kv Pharmaceutical Co /De/)
Liability of the Bank. (a) The liability Applicant assumes all risks of the Bank (acts or omissions of the Trustee, or any other Indemnified Person) underagent of the Trustee, in connection with and/or arising out and any transferee beneficiary of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to its use of the form Letter of Credit. Neither the Bank nor any of its officers or legal grounds directors shall be liable or responsible for: (i) the use which may be made of the action Letter of Credit or proceedingfor any acts or omissions of the Trustee and any transferee beneficiary in connection therewith; (ii) the validity or genuineness of documents, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged; or (iii) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, however, that the Applicant shall have a claim against the Bank, and the Bank shall be limited liable to the Applicant, to the extent of any direct compensatory, as opposed to consequential, damages suffered by the Applicant that are which the Applicant proves were caused directly by the Bank’s gross negligence 's failure to act in good faith or willful misconduct to observe general banking usage in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies connection with the Letter of Credit or (iii) retaining Drawing Documents failure to examine documents presented under the Letter of Credit. In no event shall the Bank be deemed Credit with care 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of determine whether the Bank or any Indemnified Person shall have been advised of the 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 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 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) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies they comply with the terms of the Letter of Credit; Credit (ii) honor of a presentation of any Drawing Documents which appear on their face to have been signed, presented it being understood that the Bank assumes no liability or issued (X) by any purported successor or transferee of any beneficiary or other party required to sign, present or issue responsibility for 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, falsification or legal effect of any presentation document which appears on such examination to 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 Drawing Documents; of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit are true and correct.
(vb) disregard of any non-documentary conditions stated in The Bank represents and warrants to the Applicant that it has all necessary authority to enter into this Agreement and to issue the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerned.
Appears in 1 contract
Samples: Reimbursement Agreement (Griffith Micro Science International Inc)
Liability of the Bank. (a) The Commission assumes all risks of the acts or omissions of the Tender Agent, the Paying Agent and the Remarketing Agent and any agent of the Tender Agent, the Paying Agent and the Remarketing Agent and their agents with respect to this Agreement and the use of any amounts made available by the 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 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 to comply with the applicable provisions of the Resolutions. Neither the Bank nor any of its employees, officers, directors or agents shall be liable or responsible for: (a) the use which may be made of this Agreement or for any acts or omissions of the Commission, the Tender Agent, the Paying Agent and/or the Remarketing Agent in connection therewith; (b) the validity or genuineness of documents, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged; (c) payment by the Bank against presentation of documents which do not comply with the terms hereof, including failure of any documents to bear any reference or adequate reference to this Agreement; or (d) any other Indemnified Person) undercircumstances whatsoever in making or failing to make payment hereunder; provided, in connection with and/or arising out of this Agreementhowever, any Related Document or that the Letter of Credit (or any pre-advice), regardless of Commission shall have a claim against the form or legal grounds of Bank and the action or proceeding, Bank shall be limited liable to the Commission, to the extent, but only to the extent, of any direct direct, as opposed to consequential, damages suffered by the Applicant that are Commission which the Commission proves were caused directly by Bank’s gross negligence or willful misconduct in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank be deemed to have failed to act with due diligence or reasonable care if the Bank’s conduct is willful or negligent failure to make lawful payment hereunder in accordance with Standard Letter the terms hereof, unless such failure to pay resulted from circumstances beyond the Bank’s control. In furtherance and not in limitation of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the foregoing, the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to may accept documents that the Bank in respect of an honored presentation under the Letter of Creditgood faith determines appear on their face to be in order, plus interest. Notwithstanding anything to the contrary herein, the Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable without responsibility for any punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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 damagesfurther investigation.
(b) Without limiting any other provision of this Agreement, The Commission assumes all risks associated with the acceptance by the Bank of documents received by telecommunication, it being agreed that the use of telecommunication devices is for the benefit of the Commission 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 that the Bank shall not be impaired by: (i) honor of a presentation under the Letter of Credit which on its face substantially complies assumes no liabilities or risks with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedrespect thereto.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. The Company assumes all risks of the acts or omissions of any transferee of any Letter of Credit with respect to its use of such Letter of Credit. No Indemnified Party shall be liable or responsible for: (a) The liability the use which may be made of any Letter of Credit or for any acts or omissions of any transferee in connection therewith; (b) the validity or genuineness of documents tendered to or relied upon by the Bank, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged; (c) payment by the Bank against presentation of documents which do not comply with the terms of any Letter of Credit, including failure of any documents to bear any reference or adequate reference to such Letter of Credit; or (or d) any other Indemnified Personcircumstances whatsoever in making or failing to make payment under any Letter of Credit; provided, however, that the Company has a claim against the Bank, and the Bank shall be liable to the Company, to the extent of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (i) underthe Bank’s bad faith, willful misconduct or gross negligence in connection determining whether documents presented under any Letter of Credit comply with and/or arising out the terms of this Agreement, any Related Document or the 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 pre-advice)document presented pursuant to such Letter of Credit proves to be forged, regardless 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 form Bank) 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 the Letter of Credit, (ii) failing the Bank’s failure to honor a presentation that strictly complies with the make lawful payment under any Letter of Credit or (iii) retaining Drawing Documents presented under after the presentation to the Bank by the Company of a certificate strictly complying with the terms and conditions of such Letter of Credit. In no event shall the The Bank be deemed is hereby expressly authorized and directed to have failed to act with due diligence or reasonable care if the Bank’s conduct honor any demand for payment which is in accordance with Standard made under any Letter of Credit Practice without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies among the Issuer, the Company or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in accordance with this Agreement. The Applicant’s aggregate remedies against any of the Bank and any Indemnified Person for wrongfully honoring a presentation documents presented under the such Letter of Credit 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 are true and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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 damagescorrect.
(b) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerned.
Appears in 1 contract
Samples: Collateralized Issuance and Reimbursement Agreement (McClatchy Co)
Liability of the Bank. (a) The liability As to the Bank, the Authority assumes all risks of the Bank (acts or any other Indemnified Person) under, in connection omissions of the Trustee and the Issuing and Paying Agent with and/or arising out respect to their use of this Agreement, any Related Document or 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 the Issuing and Paying Agent at law or under any pre-advice)other agreement. Neither the Bank nor any of its officers, regardless of the form directors, employees or legal grounds of the action or proceeding, agents shall be limited to any direct damages suffered by liable or responsible for: 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 the Letter use made of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter any proceeds of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall for any acts or omissions of the Trustee or the Issuing and Paying Agent; the validity, sufficiency or genuineness of any documents, or endorsements, even if such documents should in no event exceed the aggregate amount paid fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; payment by the Applicant to the Bank in respect against presentation 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in documents which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any 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 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) Without limiting any other provision of this Agreement, the Bank and each other Indemnified Person (if applicable), shall do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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 or adequate reference to the Letter of Credit; (iv) or any other circumstances in making or failing to make payment under the identity Letter of Credit; provided, however, that the Authority shall have a claim against the Bank, and the Bank shall be liable to the Authority for direct, but not consequential, damages suffered by the Authority which were caused solely by the willful misconduct or authority gross negligence of the Bank in connection with drawings under the Letter of Credit. By way of amplification, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any presenter notice or signer information to the contrary. Subject to the foregoing, the determination of any whether a Drawing Document has been presented under the Letter of Credit prior to the Termination Date or the form, accuracy, genuineness, or legal effect of any presentation whether a Drawing under the Letter of Credit or any accompanying document or instrument is in proper and sufficient form shall be made by the Bank 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 any Credit against a Drawing Documents; (v) disregard of any non-documentary conditions stated with accompanying documents in the forms provided for in the Letter of Credit; (vi) acting upon any Instruction which itCredit but varying in punctuation, in Good Faithcapitalization, believes to have been given by a Person spelling or entity authorized to give such Instruction; (vii) any errors, omissions, interruptions or delays in transmission or delivery similar matters 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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedform.
Appears in 1 contract
Samples: Reimbursement Agreement
Liability of the Bank. (a) The liability Borrower assumes all risks of the Bank (acts or any other Indemnified Person) under, in connection with and/or arising out omissions of this Agreement, any Related Document the Bond Trustee or the Note Trustee, as the case may be, and any beneficiary or transferee of any Direct Pay Letter of Credit (with respect to its use of such Direct Pay Letter of Credit. Neither the Bank nor any of its agents, employees, officers, directors or any pre-advice), regardless of the form or legal grounds of the action or proceeding, counsel shall be limited to any direct damages suffered by the Applicant that are caused directly by Bank’s gross negligence liable or willful misconduct in responsible for:
(i) honoring a the use which may be made of any Direct Pay Letter of Credit 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;
(ii) the form, validity, sufficiency, accuracy or genuineness of any document (including, without limitation, any document presented under any Direct Pay Letter of Credit), or of any statement or endorsement(s) thereon, even if such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue;
(iii) payment by the Bank against presentation that does of documents which do not at least substantially comply with the terms of a particular Direct Pay Letter of Credit, including 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;
(iiiv) failing the validity or sufficiency of any instrument transferring or assigning or purporting to honor transfer or assign a presentation that strictly complies with the particular Direct Pay Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank be deemed to have failed to act with due diligence rights or reasonable care if the Bank’s conduct is benefits thereunder or proceeds thereof, in accordance with Standard Letter of Credit Practice whole or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Indemnified Person for wrongfully honoring a presentation under the Letter of Credit part, which may prove to be invalid 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 ineffective for any punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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.reason;
(b) Without limiting any other provision of this Agreement, 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 Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 messagemessages by mail, advice cable, telegraph, telex, telephone or document otherwise;
(regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation; (viiivi) any loss or delay in giving 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 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 give make payment under 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, of any notice; direct, as opposed to consequential, damages suffered by the Borrower which were caused by (ixA) any acts, omissions the Bank's willful misconduct or fraud bygross negligence, or that of any of its agents, employees, officers, directors or counsel, in determining whether documents presented under a particular Direct Pay Letter of Credit comply with the solvency ofterms of said Direct Pay Letter of Credit or (B) the Bank's, or that of any beneficiaryof its agents, any nominated Person employees, officers, directors or any other Person; (x) any breach counsel, willful failure to pay under a particular Direct Pay Letter of contract between Credit after the beneficiary and the Applicant presentation to it or any of them by the parties to Bond Trustee or the underlying transaction; (xi) assertion or waiver Note Trustee, as the case may be, holding a particular Direct Pay Letter of any provision of the ISP which primarily benefits an issuer Credit of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by draft and certificate strictly complying with the terms and conditions of the said Direct Pay Letter of Credit) claiming , unless the Bank or such other Person in good faith and upon advice of counsel believes that it rightfully honored is prohibited by law or is entitled other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents which appear on their face to reimbursement or indemnity under Standard Letter of Credit Practice; (xiii) dishonor be in order, without responsibility for further investigation regardless of any presentation upon notice or during any Event of Default or for which information to the Applicant is unable or unwilling to reimburse or indemnify the Bank (contrary; provided that the Applicant acknowledges that if the Bank shall later be required to honor receive written notification from either the presentationBond Trustee or the Note Trustee, as the Applicant shall be liable therefore in accordance with Article 2 hereof); and (xiv) acting or failing to act as required or permitted under Standard case may be, holding a particular Direct Pay Letter of Credit Practice. For purposes and the Borrower that documents conforming to the terms of this Section 7.5(b)said Direct Pay Letter of Credit to be presented to the Bank are not to be honored, “Good Faith” means honesty in fact the Bank agrees that it will not honor such 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 or any other Person as a result of any tender of Bonds resulting from a reduction of the credit rating of the Bank or any deterioration in the conduct Bank's financial condition. No such tender of Bonds shall reduce or in any way diminish the Obligations of the transaction concernedBorrower to the Bank under this Agreement.
Appears in 1 contract
Liability of the Bank. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (a) The liability the use which may be made of this Agreement or of any amounts made available by the Bank (hereunder by, or for any other Indemnified Person) underacts or failures to act of, in connection with and/or arising out of this Agreement, any Related Document the Trustee 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 the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 Remarketing Agent in connection with this Agreement, including the failure of the Trustee to 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, or of any Related Document endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged by any Person other than the Letter of Credit Bank; or (c) any other circumstances whatsoever in making or failing to make payment under this Agreement; provided, however, that the Issuer shall have a claim against the Bank and the Bank shall be reduced by an amount equal liable to the sum of Issuer for any and all claims, damages, losses, liabilities and reasonable costs or expenses (including reasonable attorney’s fees and expenses) suffered by the Issuer if and to the extent that the 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 amount saved by Bank’s purchase or failure to purchase Tendered Bonds in accordance with the Applicant terms and conditions of this Agreement as a result of the breach Bank's negligence or alleged wrongful conduct willful misconduct, and (ii) the amount Bank's purchase or failure to purchase is not caused by the failure of the loss that would have been avoided had Remarketing Agent or the Applicant mitigated damages.
(b) Without limiting any other provision of this Agreement, Trustee to give notice to the Bank of the tender of Bonds for purchase in the time and each other Indemnified Person (if applicable)manner provided in Section 2.02(a) hereof; provided, further, that the Bank shall not in no event be responsible liable to the Applicant forIssuer for punitive or consequential damages, and the Bank’s rights and remedies against the Applicant and the Applicant’s obligation Issuer hereby waives its right to reimburse the Bank shall not be impaired by: (i) honor of a presentation under the Letter of Credit which on its face substantially complies with the terms of the Letter of Credit; (ii) honor of a presentation of receive any 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 or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under the Letter of Credit or of any Drawing Documents; (v) disregard of any non-documentary conditions stated in the Letter of Credit; (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 the Applicant or any of the parties to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by 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 reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concerneddamages.
Appears in 1 contract
Samples: Standby Bond Purchase Agreement
Liability of the Bank. (a) The liability With respect to the Bank, the Borrower assumes any and all risks with respect to the acts or omissions of each of the Bank (or Trustee, the Paying Agent, the Remarketing Agent and any other Indemnified Person) under, in connection with and/or arising out transferee of this Agreement, any Related Document or the Letter of Credit (and any other Person in connection with its or any pre-advice), regardless their use 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 the Letter of CreditCredit or of any amounts made available by the Bank thereunder. Neither the Bank, its Affiliates or any Participant, nor any of their respective officers, directors, employees or agents shall be liable or responsible for any of the following: (iia) failing to honor a presentation the use that strictly complies may be made of the Letter of Credit or any amounts made available by the Bank thereunder or for any acts or omissions of the Trustee, the Paying Agent, the Borrower, the Remarketing Agent or any other Person in connection with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter use of Credit. In no event shall the Bank 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 Indemnified Person for wrongfully honoring a presentation under the Letter of Credit 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 punitive, consequential, indirect or special damages or losses regardless of whether the Bank or any Indemnified Person shall have been advised of the 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 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 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.
proceeds; (b) Without limiting any other provision of this Agreementthe 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, 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; (e) payment by the Bank and each other Indemnified Person (if applicable), shall against presentation of documents which do 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 Credit which on its face substantially complies comply with the terms of the Letter of Credit; (ii) honor of a presentation , including failure of any Drawing Documents which appear on their face documents 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; or (ivf) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; provided, 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, of any direct, 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 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 identity Bank’s fraud, willful misconduct or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation gross negligence in determining whether documents presented under the Letter of Credit comply with the terms thereof or of any Drawing Documents; (vii) disregard of any non-documentary conditions stated in the Bank’s willful failure to pay under the Letter of CreditCredit after the presentation to it by the Trustee or Paying Agent (or a successor trustee or Paying Agent under the Indenture in accordance with its terms) of a draft and certificate strictly complying with the terms and conditions thereof; (vi) acting upon any Instruction which itprovided, in Good Faithhowever, believes to have been given that the maximum amount of damages recoverable 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 the Applicant or any of the parties Borrower as provided above is expressly limited to the underlying transaction; (xi) assertion or waiver of any provision of the ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (xii) payment to any paying or negotiating bank (designated or permitted by the terms stated amount of the Letter of Credit) claiming Credit as of the date of issuance thereof. In furtherance and not in limitation of the foregoing, the Bank may accept documents that it rightfully honored or is entitled appear on their face to reimbursement or indemnity under Standard Letter of Credit Practice; (xiii) dishonor be in order, without responsibility for further investigation, regardless of any presentation upon notice or during any Event of Default or for which information to the Applicant is unable or unwilling to reimburse or indemnify the Bank (provided that the Applicant acknowledges that if the Bank shall later be required to honor the presentation, the 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 conduct of the transaction concernedcontrary.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Gevo, Inc.)
