Common use of Nature of Lender's Duties Clause in Contracts

Nature of Lender's Duties. Each of Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the Lender and Underlying Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall be liable for (i) any action taken or omitted in the absence of a breach of this Agreement, violation of applicable law, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach of this Agreement, violation of applicable law, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the Lender or Underlying Issuer 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 (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Nature of Lender's Duties. Each of Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the Lender and Underlying Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall be liable for (i) any action taken or omitted in the absence of a breach of this Agreement, violation of applicable lawLaw, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach of this Agreement, violation of applicable lawLaw, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the Lender or Underlying Issuer 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 (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Nature of Lender's Duties. Each In addition to amounts payable as elsewhere provided in this subsection, Borrower hereby agrees to protect, indemnify and save Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys' fees and allocated costs of internal counsel) which Lender and may incur or be subject to as a consequence, direct or indirect, to the Borrower agree thatextent not caused by the gross negligence, in paying bad faith or willful misconduct of Lender, its directors, officers, employees, agents or attorneys, of (1) the issuance of any drawing under a Letter of Credit, or (2) the failure of Lender and Underlying Issuer to honor a drawing under any Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority. Without limiting the foregoing, Lender shall not have any responsibility obligation to obtain ascertain whether the stated purpose of any document (other than any sight draft, certificates and documents expressly required by the requested Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, Credit is permitted by this Agreement and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall not be liable for (i) any action taken or omitted in the absence Borrower's use of a breach of this Agreement, violation of applicable law, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error issued pursuant to the terms hereof in interpretation violation of technical terms; or (iii) Borrower's covenants contained herein. As among Borrower on one hand and Lender on the due executionother hand, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts and omissions of, or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None misuse of the Letters of Credit issued by Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach respective beneficiaries of this Agreement, violation of applicable law, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter such Letters of Credit. In furtherance and not in limitation of the foregoing, the Lender or Underlying Issuer 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 (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit, unless (i) such failure is material and substantive, and (ii) Lender's payment on such Letter of Credit constitutes gross negligence or willful misconduct; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of Lender. None of the above shall affect, impair, or prevent the vesting of any of Lender's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by Lender under or in connection with the Letters of Credit issued by it or the related certificates, if (i) taken or omitted in good faith and (ii) substantially in accordance with the terms thereof, shall not put Lender under any resulting liability to Borrower.

Nature of Lender's Duties. Each of (a) As between the Administrative Agent and any Lender and the Borrower agree that, in paying any drawing under a Letter of CreditBorrowers, the Lender and Underlying Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall be liable for (i) any action taken or omitted in the absence of a breach of this Agreement, violation of applicable law, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes Borrowers assume all risks of the acts and omissions of, or omissions of any beneficiary or transferee with respect to its use misuse of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, Credit by beneficiaries of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach of this Agreement, violation of applicable law, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither the Administrative Agent nor any Lender shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or Underlying Issuer legal effect of any document issued by any party (other than the Administrative Agent or such Lender, as the case may accept documents that appear on their face be) in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in orderany or all respects invalid, without responsibility for further investigationinsufficient, regardless of any notice inaccurate, fraudulent or information to the contrary forged; (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit, provided that, in the case of any payment by the Administrative Agent under any Letter of Credit or guaranty thereof, the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher (other than to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Lender, as the case may be); (v) for errors in interpretation of technical terms based on knowledge or lack of knowledge of any usage of any particular trade; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof (other than to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Lender, as the case may be); (vii) for the credit of the proceeds of any drawing under any Letter Credit or guaranty thereof; and (viii) for any consequences arising from causes beyond the control of the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of the Administrative Agent's or any Lender's rights or powers hereunder or under this Agreement. (b) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among the Borrowers and such L/C Issuer.

Nature of Lender's Duties. Each of (a) As between the Administrative Agent and any Lender and the Borrower agree that, in paying any drawing under a Letter of CreditBorrowers, the Lender and Underlying Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall be liable for (i) any action taken or omitted in the absence of a breach of this Agreement, violation of applicable law, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes Borrowers assume all risks of the acts and omissions of, or omissions of any beneficiary or transferee with respect to its use misuse of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, Credit by beneficiaries of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach of this Agreement, violation of applicable law, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither the Administrative Agent nor any Lender shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or Underlying Issuer legal effect of any document issued by any party (other than the Administrative Agent or such Lender, as the case may accept documents that appear on their face be) in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in orderany or all -42- respects invalid, without responsibility for further investigationinsufficient, regardless of any notice inaccurate, fraudulent or information to the contrary forged; (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit, provided that, in the case of any payment by the Administrative Agent under any Letter of Credit or guaranty thereof, the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher (other than to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Lender, as the case may be); (v) for errors in interpretation of technical terms based on knowledge or lack of knowledge of any usage of any particular trade; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof (other than to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Lender, as the case may be); (vii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (viii) for any consequences arising from causes beyond the control of the Administrative Agent or any Lender. None of the above shall affect, impair or prevent the vesting of any of the Administrative Agent's or any Lender's rights or powers hereunder or under this Agreement. (b) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among the Borrowers and such L/C Issuer.

Nature of Lender's Duties. Each In addition to amounts payable as elsewhere provided in this Section 2.11, each Borrower hereby agrees to protect, indemnify and save Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys' fees and allocated costs of internal counsel) which Lender and may incur or be subject to as a consequence, direct or indirect, to the Borrower agree thatextent not caused by the gross negligence, in paying bad faith or willful misconduct of Lender, its directors, officers, employees, agents or attorneys, of (1) the issuance of any drawing under a Letter of Credit, or (2) the failure of Lender and Underlying Issuer to honor a drawing under any Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority. Without limiting the foregoing, Lender shall not have any responsibility obligation to obtain ascertain whether the stated purpose of any document (other than any sight draft, certificates and documents expressly required by the requested Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, Credit is permitted by this Agreement and attorneys-in-fact nor any of their respective correspondents, participants or assignees shall not be liable for (i) any action taken or omitted in the absence Borrower's use of a breach of this Agreement, violation of applicable law, gross negligence or willful misconduct; (ii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error issued pursuant to the terms hereof in interpretation violation of technical terms; or (iii) Borrowers' covenants contained herein. As among each Borrower on one hand and Lender on the due executionother hand, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The each Borrower hereby assumes all risks of the acts and omissions of, or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None misuse of the Letters of Credit issued by Lender nor the Underlying Issuer nor their respective officers, directors, employees, agents, attorneys, and attorneys-in-fact nor any of their correspondents, participants or assignees shall be liable or responsible for any of the matters described in clauses (a) through (e) of Section 4 of this Annex; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s breach respective beneficiaries of this Agreement, violation of applicable law, willful misconduct or gross negligence or the Lender’s or Underlying Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter such Letters of Credit. In furtherance and not in limitation of the foregoing, the Lender or Underlying Issuer 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 (or the Lender or Underlying Issuer may refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit), and the Lender or Underlying Issuer shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit, unless (i) such failure is material and substantive, and (ii) Lender's payment on such Letter of Credit constitutes gross negligence or willful misconduct; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of Lender. None of the above shall affect, impair, or prevent the vesting of any of Lender's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by Lender under or in connection with the Letters of Credit issued by it or the related certificates, if (i) taken or omitted in good faith and (ii) substantially in accordance with the terms thereof, shall not put Lender under any resulting liability to Borrowers.