Liability for Acts and Omissions. As between any VSE Entity and the LC Issuer, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the particular Letter of Credit Application for such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 7 contracts
Sources: Business Loan and Security Agreement (Vse Corp), Business Loan and Security Agreement (Vse Corp), Business Loan and Security Agreement (Vse Corp)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 6 contracts
Sources: Receivables Purchase Agreement (Core Natural Resources, Inc.), Receivables Purchase Agreement (Arch Resources, Inc.), Receivables Purchase Agreement (Arch Coal Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 6 contracts
Sources: Credit Agreement (Super Test Petroleum Inc), Credit Agreement (Kwik Fil Inc), Credit Agreement (New Jersey Resources Corp)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 6 contracts
Sources: Revolving Credit and Security Agreement (Empeiria Acquisition Corp), Revolving Credit, Term Loan and Security Agreement (Enservco Corp), Revolving Credit and Security Agreement (Image Entertainment Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 6 contracts
Sources: Receivables Purchase Agreement (LyondellBasell Industries N.V.), Receivables Purchase Agreement (LyondellBasell Industries N.V.), Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent's Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent's Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's or the Agent's Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent's Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 5 contracts
Sources: Senior Multi Currency Revolving Credit Facility (Viasys Healthcare Inc), Credit Agreement (Bell Oil Corp), Credit Agreement (New Jersey Resources Corp)
Liability for Acts and Omissions. As between any VSE Entity Credit Party and the LC Issuer, or the Borrowers assume Issuer’s Affiliates, such Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit, other than as a result of the gross negligence or willful misconduct of the Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity Credit Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuer or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC an Issuer from liability for the LC such Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC an Issuer or its Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuer or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuer or its Affiliates under any resulting liability to the Borrowers or any Lender.
Appears in 5 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s bad faith, gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence, as determined by a final non-appealable judgment of a court of competent jurisdiction. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (ia) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (iib) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiic) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (ivd) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (ve) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vif) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 4 contracts
Sources: Credit Agreement (Covance Inc), Credit Agreement (Covance Inc), Credit Agreement (Covance Inc)
Liability for Acts and Omissions. As between any VSE Entity the Borrower, on the one hand, and the LC IssuerAdministrative Agent, the Borrowers assume Letter of Credit Issuers, the L/C Participants, the Co-Agents and the Lenders, on the other, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit and by the respective account parties or applicants named on such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the LC Issuer Administrative Agent, the Letter of Credit Issuers, the L/C Participants, the Co-Agents or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC applicable Letter of Credit Issuer shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party, any Originator or any of their respective Affiliates against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party, any Originator or any of their respective Affiliates and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAdministrative Agent, the Letter of Credit Issuers, the L/C Participants, the Co-Agents and the Lenders, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC any Letter of Credit Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC any Letter of Credit Issuer from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Administrative Agent, the Letter of Credit Issuers, the L/C Participants, the Co-Agents, the Lenders or their respective Affiliates, be liable to any VSE Entity Loan Party, any Originator or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Administrative Agent, the Letter of Credit Issuers, the L/C Participants, the Co-Agents, the Lenders and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuerapplicable Letter of Credit Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Administrative Agent, the Letter of Credit Issuers, the L/C Participants, the Co-Agents, the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the applicable Letter of Credit Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such Letter of Credit Issuer under any resulting liability to any Loan Party, any Originator, any L/C Participant or any other Person.
Appears in 4 contracts
Sources: Credit and Security Agreement (Smithfield Foods Inc), First Amendment to Fifth Amended and Restated Credit and Security Agreement (Smithfield Foods Inc), Credit and Security Agreement (Smithfield Foods Inc)
Liability for Acts and Omissions. As between any VSE Entity the Borrowers and the LC IssuerAdministrative Agent and Lenders, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Administrative Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Administrative Agent shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrowers and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC IssuerAdministrative Agent, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Administrative Agent's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Administrative Agent from liability for the LC Issuer’s Administrative Agent's gross negligence negligence, willful misconduct or willful misconduct, bad faith (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer Administrative Agent or the Administrative Agent's Affiliates be liable to any VSE Entity the Borrowers for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Administrative Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Administrative Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAdministrative Agent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Administrative Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each, an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Administrative Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put the Administrative Agent under any resulting liability to the Borrowers or any Lender.
Appears in 4 contracts
Sources: Financing Agreement (Alj Regional Holdings Inc), Financing Agreement (Alj Regional Holdings Inc), Financing Agreement (Alj Regional Holdings Inc)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerAdministrative Agent and Lenders, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Administrative Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Administrative Agent shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC IssuerAdministrative Agent, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Administrative Agent's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Administrative Agent from liability for the LC Issuer’s Administrative Agent's gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer Administrative Agent or the Administrative Agent's Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Administrative Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Administrative Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAdministrative Agent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Administrative Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Administrative Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put the Administrative Agent under any resulting liability to the Borrower or any Lender.
Appears in 4 contracts
Sources: Financing Agreement (Motorcar Parts America Inc), Financing Agreement (Motorcar Parts America Inc), Financing Agreement (Motorcar Parts America Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party, Bank issuer and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 3 contracts
Sources: Revolving Credit Facility (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc), Revolving Credit Facility (Ii-Vi Inc)
Liability for Acts and Omissions. As between any VSE Entity Borrower and the LC IssuerAgent and Lenders, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Berliner Communications Inc), Revolving Credit and Security Agreement (Input Output Inc), Revolving Credit and Security Agreement (Kenexa Corp)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC Issuereach Issuing Bank, the Borrowers assume or its Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer each Issuing Bank shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer such Issuing Bank or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuersuch Issuing Bank or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuersuch Issuing Bank’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer any Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer any Issuing Bank or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, each Issuing Bank and the LC Issuer Administrative Agent and their Affiliates (i) may rely on any oral or other communication believed in good faith by such Issuing Bank, the LC Issuer Administrative Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Issuing Bank, the Administrative Agent or their Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Bank, the Administrative Agent or their Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 3 contracts
Sources: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchasers and the Purchaser Agents, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof)forged; (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchasers and the Purchaser Agents, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers and the Purchaser Agents and each of its Affiliates: (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Avantor, Inc.), Receivables Purchase Agreement (Avantor, Inc.), Receivables Purchase Agreement (VWR Funding, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent, the Borrowers assume Swing Loan Lender and Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Keane Group, Inc.), Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc), Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchasers and the Purchaser Agents, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchasers and the Purchaser Agents, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers and the Purchaser Agents and each of its Affiliates: (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws Laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Targa Resources Corp.), Receivables Purchase Agreement (Targa Resources Partners LP), Receivables Purchase Agreement (Targa Resources Partners LP)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit, Term Loan, Guaranty, and Security Agreement (Rocky Brands, Inc.), Revolving Credit, Guaranty, and Security Agreement (Rocky Brands, Inc.), Revolving Credit, Guaranty, and Security Agreement (Rocky Brands, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Gaiam, Inc), Revolving Credit and Security Agreement (Valuevision Media Inc), Revolving Credit and Security Agreement (Johnson Outdoors Inc)
Liability for Acts and Omissions. As between any VSE Entity Borrower and the LC Issuer, the Borrowers assume Agent and Lenders. Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Research Pharmaceutical Services, Inc.), Revolving Credit and Security Agreement (Research Pharmaceutical Services, Inc.), Revolving Credit and Security Agreement (Research Pharmaceutical Services, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC Issuer, the Borrowers assume Swing Loan Lender, Agent and Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants and the other Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank or any other Purchaser shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, any LC Participant and any Conduit Purchaser, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, any LC Participant, any Conduit Purchaser or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, any LC Participant and any Conduit Purchaser and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, any LC Participant, any Conduit Purchaser or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Kansas City Power & Light Co)
Liability for Acts and Omissions. As between any VSE Entity Borrower, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Group Agents and the Lenders, on the other, such Borrower assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries any beneficiary, “Applicant” or “Account Party” of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Group Agents and the Lenders, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence or in Section 1.18 shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such the preceding sentence, in Section 1.18 or otherwise. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, be liable to any VSE Entity Borrower or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents and the Lenders and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to any Borrower, any LC Participant or any other Person.
Appears in 3 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Liability for Acts and Omissions. As between any VSE Entity Credit Party and the applicable LC Issuer, the Borrowers assume or such LC Issuer’s Affiliates, such Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Revolving Facility Letters of Credit. In furtherance and not in limitation of the foregoing, the such LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity Credit Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Revolving Facility Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the such LC Issuer or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Revolving Facility 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; (ciii) the failure of the beneficiary of any such Revolving Facility Letter of Credit, or any other Person party to which such Revolving Facility Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Revolving Facility Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Revolving Facility Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Revolving Facility Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Revolving Facility Letter of Credit or of the proceeds thereof; (gvii) the misapplication by the beneficiary of any such Revolving Facility Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Revolving Facility Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the such LC IssuerIssuer or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the such LC Issuer’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the such LC Issuer from liability for the such LC Issuer’s bad faith, gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the such LC Issuer or its Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Revolving Facility Letter of Credit. Without limiting the generality of the foregoing, the applicable LC Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the such LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Revolving Facility Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Revolving Facility Letter of Credit; (iii) may honor a previously dishonored presentation under a Revolving Facility Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the such LC IssuerIssuer or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Revolving Facility Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the such LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Revolving Facility Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Revolving Facility Letter of Credit fail to conform in any way with such Revolving Facility Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any LC Issuer or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such LC Issuer or its Affiliates under any resulting liability to the Company, any other Borrower or any Revolving Lender.
Appears in 3 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Liability for Acts and Omissions. As between any VSE Entity Loan Parties and the LC IssuerAgent and Lenders, the Borrowers assume each Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor honour any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor honour a previously dishonored dishonoured presentation under a Letter of Credit, whether such dishonor dishonour was pursuant to a court order, to settle or compromise any claim of wrongful dishonordishonour, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honoredhonoured, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor honour any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored honoured under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor honour any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Loan Party or any Lender.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Horsehead Holding Corp), Revolving Credit and Security Agreement (Horsehead Holding Corp)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit, other than the gross negligence or willful misconduct of the Agent as determined by a final and non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement, Revolving Credit and Security Agreement (Emerge Energy Services LP)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerAgent, or the Agent's Affiliates, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity the Borrower or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent's Affiliates shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent's Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's or the Agent's Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer Agent or the Agent's Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Liability for Acts and Omissions. As between any VSE Entity the Borrower, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Group Agents and the Lenders, on the other, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries any beneficiary, “Applicant” or “Account Party” of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Group Agents and the Lenders, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence or in Section 1.18 shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such the preceding sentence, in Section 1.18 or otherwise. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, be liable to the Borrower or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents and the Lenders and each of their Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Borrower, any LC Participant or any other Person.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerIssuing Bank, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Bank shall not be responsible for any of the followingfollowing including, including without limitation, any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerIssuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, ) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Issuing Bank be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including including, without limitation, attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Issuing Lender: (iA) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Bank to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Lender; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer Issuing Bank in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Bank under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Credit Agreement (Calgon Carbon Corporation), Credit Agreement (Calgon Carbon Corporation)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank, any LC Participant or any Purchaser shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for to the Seller in any independent action or proceeding brought by the Seller against the LC IssuerBank following reimbursement or payment by the Seller to the extent of any unavoidable direct damages suffered by the Seller that are caused directly by the LC Bank’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with the actions or omissions described in such clauses (ai) through (hviii) of such sentence.; provided that (i) the LC Bank shall be deemed to have acted with due diligence and reasonable care if it acts in accordance with standard letter of credit practice of commercial banks; and (ii) the Seller’s aggregate remedies against the LC Bank for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by the Seller to the LC Bank with respect to the honored presentation, plus interest. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Cloud Peak Energy Inc.), Receivables Purchase Agreement (Cloud Peak Energy Inc.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC L/C Issuer, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC L/C Issuer shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if unless the LC L/C Issuer shall have been notified specific knowledge thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit (except for failures obvious on their face) or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC L/C Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC L/C Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC L/C Issuer from liability for the LC L/C Issuer’s gross negligence or willful misconduct, misconduct as finally determined by a final, non-appealable judgment of a court of competent jurisdiction, jurisdiction in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC L/C Issuer be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC L/C Issuer (i) may rely on any oral or other communication believed in good faith by the LC L/C Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC L/C Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC L/C Issuer in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Sources: Credit Agreement (Interface Security Systems, L.L.C.), Credit Agreement (Interface Security Systems Holdings Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the Administrator, the LC Bank, the LC Participants and the Issuer, on the Borrowers assume other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Bank, the LC Participants or the Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC Bank, the LC Participants and the Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Bank, the LC Participants, the Issuer or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Bank, the LC Participants and the Issuer and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Bank, the LC Participants, the Issuer or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Arch Coal Inc), Receivables Purchase Agreement (Peabody Energy Corp)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC Issuer, the Borrowers assume Swing Loan Lender, Agent and ▇▇▇▇▇▇▇, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument [PHI Group] Revolving Credit, Term Loan and Security Agreement transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or Issuer’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender. [PHI Group] Revolving Credit, Term Loan and Security Agreement
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC Issuer, the Borrowers assume Swing Loan Lender, Agent and ▇▇▇▇▇▇▇, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any [PHI Group] Revolving Credit, Term Loan and Security Agreement or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or Issuer’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. [PHI Group] Revolving Credit, Term Loan and Security Agreement
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s bad faith, gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (SMTC Corp), Revolving Credit and Security Agreement (SMTC Corp)
Liability for Acts and Omissions. As between any VSE Entity the U.S. Borrowers and the LC IssuerAgent and Lenders, the U.S. Borrowers assume all risks of the acts and omissions of, or misuse of the U.S. Letters of Credit by, the respective beneficiaries of such U.S. Letters of Credit. As between the Canadian Borrowers and Agent and Lenders, the Canadian Borrowers assume all risks of the acts and omissions of, or misuse of the Canadian Letters of Credit by, the respective beneficiaries of such Canadian Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity applicable Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity applicable Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers .powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final judgment which is no longer appealable) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final judgment which is no longer appealable), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerIssuing Bank, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Bank, including any act or omission action of any GovernmentGovernmental Person, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Issuing Bank's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Bank from liability for the LC Issuer’s Issuing Bank's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change furtherance and extension and not in the value of any property relating to a Letter of Credit. Without limiting the generality limitation of the foregoingspecific provisions set forth above, the LC Issuer (i) may rely on any oral action taken or other communication believed in good faith omitted by the LC Issuer to have been authorized Issuing Bank under or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter the Letters of Credit that is issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the subject Issuing Bank under any resulting liability to such order, notwithstanding that the Borrower or any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBank.
Appears in 2 contracts
Sources: Loan Agreement (Atlas Pipeline Partners Lp), Loan Agreement (Resource America Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerLender, or the Borrowers assume Lender's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerLender or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Lender's or its Affiliate's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Lender from liability for the LC Issuer’s Lender's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Lender or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerLender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored presentation under the laws or practices of the place where such bank is located, provided such negotiating bank was authorized by PNC (or the Borrowers, as applicable) to act in such capacity; and (vi) may settle or adjust any claim or demand made on the LC Issuer Lender or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Lender or its Affiliates under any resulting liability to any Borrower or any other Loan Party. This paragraph is not intended to relieve the Lender from liability, subject to the terms of Section 2.7.7 and set forth above in this Section 2.7.8, for conduct for which the Lender would not be entitled to indemnification under clause (A) of Section 2.7.7.
Appears in 2 contracts
Sources: Credit Agreement (Park Electrochemical Corp), Credit Agreement (Park Electrochemical Corp)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrative Agent, the Borrowers assume LC Bank and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, none of the Administrative Agent, the LC Issuer Bank or any Purchaser shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an Issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which that may prove to be invalid or ineffective for any reason; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrative Agent, the LC IssuerBank and the Purchasers, including any act or omission of any Government, Governmental Acts; and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrative Agent, the LC Issuer Bank, the Purchasers or their respective Affiliates be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrative Agent, the LC Issuer Bank and the Purchasers and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrative Agent, the LC Issuer Bank, the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”), and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the LC Bank under any resulting liability to the Seller, any Related Committed Purchaser or any other Person, unless such LC Bank shall have acted with gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction,.
Appears in 2 contracts
Sources: Receivables Purchase Agreement and Purchase and Sale Agreement (Armstrong World Industries Inc), Receivables Purchase Agreement (Armstrong World Industries Inc)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerIssuing Lender, or the Issuing ▇▇▇▇▇▇’s Affiliates, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity the Borrower or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof)forged; (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical termsterms or errors in translation; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Lender or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerIssuing Lender’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Lender from liability for the LC IssuerIssuing ▇▇▇▇▇▇’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction by final and nonappealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In Notwithstanding the foregoing, in no event shall the LC Issuer Issuing Lender or its Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Lender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws Laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Lender or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each, an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions specified above, any action taken or omitted by the Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Credit Agreement (Pure Storage, Inc.), Credit Agreement (Pure Storage, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent's Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent's Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's or the Agent's Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent's Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "ORDER") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting liability to the Borrowers or any Bank.
Appears in 2 contracts
Sources: Credit Agreement (Glatfelter P H Co), Credit Agreement (Glatfelter P H Co)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerAgent, or the Agent's Affiliates, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity the Borrower or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent's Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent's Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's or the Agent's Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent's Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 2 contracts
Sources: Revolving Credit Facility (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Liability for Acts and Omissions. As between any VSE Entity Loan Party, each Issuing Bank and the LC IssuerAgents, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer neither any Agent nor any Issuing Bank shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuerany Issuing Bank or any Agent, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agents' rights or powers hereunderhereunder or of any of the rights or powers hereunder of any Issuing Bank. Nothing in the preceding sentence shall shall: (x) relieve the LC Issuer any Agent from liability for the LC Issuer’s such Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence, or (y) relieve any Issuing Bank from liability for such Issuing Bank's gross negligence or willful misconduct in connection with actions or omissions described in such clauses (i) through (viii) of such sentence. In no event shall the LC Issuer any Issuing Bank or any Agent be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, each Issuing Bank and the LC Issuer Agents (i) may rely on any oral or other communication believed in good faith by the LC Issuer any Issuing Bank or any Agent to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Agent or any Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put any Agent or any Issuing Bank under any resulting liability to the Borrower or any other Bank.
Appears in 2 contracts
Sources: Revolving Credit Facility (Arch Coal Inc), Revolving Credit Facility (Arch Coal Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC Issuereach Issuing Bank, the Borrowers assume or its Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer each Issuing Bank shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer such Issuing Bank or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuersuch Issuing Bank or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuersuch Issuing Bank’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer any Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer any Issuing Bank or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, each Issuing Bank and the LC Issuer Administrative Agent and their Affiliates (i) may rely on any oral or other communication believed in good faith by such Issuing Bank, the LC Issuer Administrative Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Issuing Bank, the Administrative Agent or their Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Bank, the Administrative Agent or their Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 2 contracts
Sources: Credit Agreement (Koppers Inc), Credit Agreement (KI Holdings Inc.)
Liability for Acts and Omissions. (i) As between any VSE Entity the Credit Parties and the LC IssuerIssuing Banks, the Borrowers assume Swing Line Lender, the Agents and the Lenders, each Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Banks shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (aA) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer an Issuing Bank or any of its Affiliates shall have been notified thereof); (bB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (cC) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Letter of Credit or any such transferee; (dD) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (eE) errors in interpretation of technical terms; (fF) 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; (gG) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hH) any consequences arising from causes beyond the control of the LC Issueran Issuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issueran Issuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer an Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (aA) through (hH) of such sentence. In no event shall the LC Issuer an Issuing Bank or an Issuing Bank’s Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(ii) Without limiting the generality of the foregoing, the LC Issuer each Issuing Bank and each of its Affiliates: (iA) may rely on any oral or other communication believed in good faith by the LC Issuer such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliates; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put such Issuing Bank under any resulting liability to any Credit Party, any Agent or any Lender.
Appears in 2 contracts
Sources: Abl Credit and Guaranty Agreement (QualTek Services Inc.), Abl Credit and Guaranty Agreement (QualTek Wireline LLC)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerAgent, and except in the case of gross negligence or willful misconduct of the Agent, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any (unless arising from the gross negligence or willful misconduct of the followingAgent), including any losses or damages to any VSE Entity or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); , (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; , (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Lender against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Lender and any beneficiary of any Letter of Credit or any such transferee; , (div) 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; , (ev) errors in interpretation of technical terms; , (fvi) 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; , (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentAgent, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's rights or powers hereunder. Nothing In furtherance and extension and not in limitation of the preceding sentence shall relieve specific provisions set forth above, any action taken or omitted by the LC Issuer from liability for Agent under or in connection with the LC Issuer’s Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, without gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, shall not render the Agent liable in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement respect to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier Borrower or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditLender.
Appears in 2 contracts
Sources: Loan Agreement (Moog Inc), Corporate Revolving and Term Loan Agreement (Moog Inc)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and ▇▇▇▇▇▇▇, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit, other than in the case of bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment). In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s bad faith, gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Drilling Tools International Corp), Revolving Credit, Security and Guaranty Agreement (ROC Energy Acquisition Corp.)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAgent, the Borrowers assume ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the foregoing, none of the LC Issuer Agent, the ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the any LC Issuer Bank or any Financial Institution shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, the ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents and the Purchasers, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the any LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the any LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent, the ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents or the Purchasers or their respective Affiliates, be liable to any VSE Entity Seller Party or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent, the ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents and the Purchasers and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the applicable LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent, the ▇▇ ▇▇▇▇▇, the Financial Institutions, the Managing Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such LC Bank under any resulting liability to any Seller Party, the Agent, any Financial Institution, any other Purchaser, any Managing Agent or any other Person.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Cardinal Health Inc), Receivables Purchase Agreement (Cardinal Health Inc)
Liability for Acts and Omissions. (i) As between any VSE Entity Seller, on the one hand, and each L/C Issuer and each other Indemnified Party, on the LC Issuerother, the Borrowers assume Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer no Indemnified Party shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC such L/C Issuer or such other Indemnified Party shall have been notified thereof); provided, that the foregoing shall not be construed to excuse any L/C Issuer from liability to Seller to the extent of any direct damages (bas opposed to consequential damages, claims in respect of which are hereby waived by Seller to the extent permitted by applicable law) suffered by Seller that are caused by such L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; provided, further, that, in the absence of gross negligence or willful misconduct on the part of the applicable L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be deemed to have exercised care in each such determination; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Governmentsuch Indemnified Party, and none of the above shall affect or impair, or prevent the vesting of, any of the LC any L/C Issuer’s or any other Indemnified Party’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC any of such L/C Issuer or other Indemnified Party be liable to Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(i) Without limiting the generality of the foregoing, the LC each L/C Issuer may (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issueran L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; and (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; .
(ii) In furtherance and (vi) may settle extension and not in limitation of the specific provisions set forth above, any action taken or adjust any claim omitted by an L/C Issuer under or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter the Letters of Credit that is issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such L/C Issuer under any resulting liability to any Seller Party, any Originator, any Purchaser, any Managing Agent, the subject to such order, notwithstanding that Administrative Agent or any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditPerson.
Appears in 2 contracts
Sources: Receivables Sale Agreement (Marathon Petroleum Corp), Receivables Purchase Agreement (Marathon Petroleum Corp)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC IssuerIssuers, the Borrowers assume Swing Loan Lender, Agent and Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC no Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC such Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC such Issuer, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC such Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC any Issuer from liability for the LC such Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final and non-appealable judgment or order) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC any Issuer or its Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC each Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC such Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC such Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment or order), shall not put such Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; located and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit Facility (Penn Virginia Resource Partners L P), Revolving Credit Facility (Penn Virginia Resource Partners L P)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC Issuereach Issuing Lender, or an Issuing Lender’s Affiliates, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer applicable Issuing Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity the Borrower or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer applicable Issuing Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuerapplicable Issuing Lender or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuerapplicable Issuing Lender’s or its Affiliates’ rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer applicable Issuing Lender from liability for the LC Issuerapplicable Issuing Lender’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer applicable Issuing Lender or its Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer each Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer applicable Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuerapplicable Issuing Lender or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws Laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer applicable Issuing Lender or its Affiliates in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each, an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the applicable Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the applicable Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 2 contracts
Sources: Revolving Credit Facility (Erie Indemnity Co), Credit Agreement (Erie Indemnity Co)
Liability for Acts and Omissions. (i) As between any VSE Entity the Credit Parties and the LC IssuerIssuing Banks, the Borrowers assume Swing Line Lender, the Agents and the Lenders, each Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Banks shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (aA) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer an Issuing Bank or any of its Affiliates shall have been notified thereof); (bB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (cC) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Letter of Credit or any such transferee; (dD) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (eE) errors in interpretation of technical terms; (fF) 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; (gG) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hH) any consequences arising from causes beyond the control of the LC Issueran Issuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issueran Issuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer an Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (aA) through (hH) of such sentence. In no event shall the LC Issuer an Issuing Bank or an Issuing Bank’s Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. DMFIRM #406105327 v12 105
(ii) Without limiting the generality of the foregoing, the LC Issuer each Issuing Bank and each of its Affiliates: (iA) may rely on any oral or other communication believed in good faith by the LC Issuer such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliates; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put such Issuing Bank under any resulting liability to any Credit Party, any Agent or any Lender.
Appears in 1 contract
Sources: Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers, on the one hand, and the LC Issuer, Swing Loan Lender, Agent and Lenders, on the Borrowers assume other hand, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final and non-appealable judgment or order) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant a Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliates in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment or order), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Liability for Acts and Omissions. As between any VSE Entity and the LC Issuer, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the particular Letter of Credit Application for such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s 's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s 's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC other Loan Parties and Issuer, the Borrowers assume Swing Loan Lender, Agent and ▇▇▇▇▇▇▇, each Borrower and Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower or any other Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower or any other Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) any loss or delay in the transmission or 281925533 otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s 's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s 's gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or Issuer's Affiliates be liable to any VSE Entity Borrower or any other Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuer under any resulting liability to any Borrower, any other Loan Party, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Delayed Draw Term Loan and Security Agreement (Ati Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents, the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents, the Purchasers and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents, the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Liability for Acts and Omissions. (i) (As between any VSE Entity the Credit Parties and the LC IssuerIssuing Banks, the Borrowers assume Swing Line Lender, the Agents and the Lenders, each Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Banks shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (aA) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer an Issuing Bank or any of its Affiliates shall have been notified thereof); (bB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (cC) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Letter of Credit or any such transferee; (dD) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (eE) errors in interpretation of technical terms; (fF) 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; (gG) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hH) any consequences arising from causes beyond the control of the LC Issueran Issuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issueran Issuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer an Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (aA) through (hH) of such sentence. In no event shall the LC Issuer an Issuing Bank or an Issuing Bank’s Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(ii) Without limiting the generality of the foregoing, the LC Issuer each Issuing Bank and each of its Affiliates: (iA) may rely on any oral or other communication believed in good faith by the LC Issuer such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliates; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put such Issuing Bank under any resulting liability to any Credit Party, any Agent or any Lender. 76
Appears in 1 contract
Sources: Debtor in Possession Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerLender, or the Borrowers assume Lender's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerLender or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Lender's or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Lender from liability for the LC Issuer’s Lender's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Lender or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerLender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Lender or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Lender or its Affiliates under any resulting liability to the Borrower.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Facility (Shotspotter, Inc)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of CreditCredit (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY OTHERWISE INDEMNIFIED MATTER ARISING FROM AGENT’S OR LENDERS’ NEGLIGENCE OR STRICT LIABILITY). In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in its good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (NYTEX Energy Holdings, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrower, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Group Agents and the Lenders, on the other, such ▇▇▇▇▇▇▇▇ assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries any beneficiary, “Applicant” or “Account Party” of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Group Agents and the Lenders, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence or in Section 1.18 shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such the preceding sentence, in Section 1.18 or otherwise. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, be liable to any VSE Entity Borrower or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents and the Lenders and each of their Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to any Borrower, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Financing Agreement (Cincinnati Bell Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other hand, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank, any LC Participant or any Purchaser shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers 782009308 25792734 or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Liability for Acts and Omissions. (i) As between any VSE Entity Seller, on the one hand, and each L/C Issuer and each other Indemnified Party, on the LC Issuerother, the Borrowers assume Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer no Indemnified Party shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC such L/C Issuer or such other Indemnified Party shall have been notified thereof); provided, that the foregoing shall not be construed to excuse any L/C Issuer from liability to Seller to the extent of any direct damages (bas opposed to consequential damages, claims in respect of which are hereby waived by Seller to the extent permitted by applicable law) suffered by Seller that are caused by such L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; provided, further, that, in the absence of gross negligence or willful misconduct on the part of the applicable L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be deemed to have exercised care in each such determination; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Governmentsuch Indemnified Party, and none of the above shall affect or impair, or prevent the vesting of, any of the LC any L/C Issuer’s or any other Indemnified Party’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC any of such L/C Issuer or other Indemnified Party be liable to Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(ii) Without limiting the generality of the foregoing, the LC each L/C Issuer (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issueran L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; and (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; .
(iii) In furtherance and (vi) may settle extension and not in limitation of the specific provisions set forth above, any action taken or adjust any claim omitted by an L/C Issuer under or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter the Letters of Credit that is issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such L/C Issuer under any resulting liability to any Seller Party, Originator, any Purchaser, any Managing Agent, the subject to such order, notwithstanding that Administrative Agent or any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditPerson.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Marathon Petroleum Corp)
Liability for Acts and Omissions. As between any VSE Entity Borrower and the LC Issuer, the Borrowers assume such Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity Borrower or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the particular Letter of Credit Application for such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Sources: Business Loan and Security Agreement (ICF International, Inc.)
Liability for Acts and Omissions. As between any VSE ICF Entity and the LC Issuer, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE ICF Entity or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the particular Letter of Credit Application for such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE ICF Entity against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE ICF Entity and any beneficiary of any Letter of Credit or any such transferee; (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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s 's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s 's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE ICF Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Sources: Business Loan and Security Agreement (ICF International, Inc.)
Liability for Acts and Omissions. (i) As between any VSE Entity Borrowers and the LC IssuerIssuing Bank, the Borrowers assume Swingline Lender, Administrative Agent and ▇▇▇▇▇▇▇, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; ;
(dii) 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 of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Issuing Bank and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuing Bank under any resulting liability to any Borrower, Administrative Agent or any Lender.
Appears in 1 contract
Sources: Credit Agreement (Big Lots Inc)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchasers and the Purchaser Agents, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries any beneficiary, “Applicant” or “Account Party” of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile, electronic mail or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchasers and the Purchaser Agents, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such the preceding sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers and the Purchaser Agents and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alpha Natural Resources, Inc.)
Liability for Acts and Omissions. As between any VSE Entity the Borrower and the LC IssuerBank, or the Bank’s Affiliates, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters Letter of Credit by, the respective beneficiaries of such Letters the Letter of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity the Borrower or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for such the Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such the 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; (ciii) the failure of the beneficiary of any such the Letter of Credit, or any other Person party to which such the Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such the Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such the Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any the Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex email or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such the Letter of Credit or of the proceeds thereof; (gvii) the misapplication by the beneficiary of the Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerBank or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC IssuerBank’s gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Bank or its Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a the Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Bank and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a the Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a the Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any the Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such the Letter of Credit fail to conform in any way with such the Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Bank or its Affiliates under or in connection with the Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Bank or its Affiliates under any resulting liability to the Borrower.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Cincinnati Financial Corp)
Liability for Acts and Omissions. As between any VSE Entity Credit Party and the applicable LC Issuer, the Borrowers assume or such LC Issuer’s Affiliates, such Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Revolving Facility Letters of Credit. In furtherance and not in limitation of the foregoing, the such LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity Credit Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Revolving Facility Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the such LC Issuer or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Revolving Facility 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; (ciii) the failure of the beneficiary of any such Revolving Facility Letter of Credit, or any other Person party to which such Revolving Facility Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Revolving Facility Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Revolving Facility Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Revolving Facility Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Revolving Facility Letter of Credit or of the proceeds thereof; (gvii) the misapplication by the beneficiary of any such Revolving Facility Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Revolving Facility Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the such LC IssuerIssuer or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the such LC Issuer’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the such LC Issuer from liability for the such LC Issuer’s bad faith, gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the such LC Issuer or its Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Revolving Facility Letter of Credit. Without limiting the generality of the foregoing, the applicable LC Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the such LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Revolving Facility Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Revolving Facility Letter of Credit; (iii) may honor a previously dishonored presentation under a Revolving Facility Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the such LC IssuerIssuer or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Revolving Facility Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the such LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Revolving Facility Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Revolving Facility Letter of Credit fail to conform in any way with such Revolving Facility Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any LC Issuer or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such LC Issuer or its Affiliates under any resulting liability to the Company, any other Borrower or any Lender.
Appears in 1 contract
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefrom: for:
(ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank or any LC Participant shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the Administrator, the LC Bank, the LC Participants and the Issuer, on the Borrowers assume other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Bank, the LC Participants or the Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC Bank, the LC Participants and the Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Bank's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Bank, the LC Participants, the Issuer or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Bank, the LC Participants and the Issuer and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Bank, the LC Participants, the Issuer or their respective Affiliates, in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Liability for Acts and Omissions. (i) As between any VSE Entity U.S. Borrowers and the LC IssuerIssuing Bank, the Borrowers assume Swingline Lender, Administrative Agent and Lenders, each U.S. Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Bank, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerIssuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Bank from liability for the LC IssuerIssuing Bank’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Issuing Bank or Issuing Bank’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(ii) Without limiting the generality of the foregoing, the LC Issuer Issuing Bank and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuing Bank under any resulting liability to any Borrower, Administrative Agent or any Lender.
Appears in 1 contract
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to substantially comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; located and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 1 contract
Sources: Revolving Credit Facility (Penn Virginia Resource Partners L P)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank and the other Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, none of the Administrator, the LC Issuer Bank or any other Purchaser shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank and any Conduit Purchaser, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence Sections 1.17, 1.18 or 1.19 of this Agreement shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentenceSections. In no event shall the Administrator, the LC Issuer Bank, any Conduit Purchaser or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank and any Conduit Purchaser and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of CreditCredit where such dishonor is the subject of disagreement, dispute or litigation, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, any Conduit Purchaser or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Greetings Corp)
Liability for Acts and Omissions. (a) As between any VSE Entity Seller, on the one hand, and each LOC Issuer and each other Indemnified Party, on the LC Issuerother, the Borrowers assume Seller assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of CreditCredit or such beneficiaries assignees except to the extent a loss results from any such act or omission or misuse solely as the result of the gross negligence or willful misconduct of the Indemnified Party as finally determined by a court of competent jurisdiction. In furtherance and not in limitation of the respective foregoing, the LC Issuer no Indemnified Party shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC such LOC Issuer or such other Indemnified Party shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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 cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Governmentsuch Indemnified Party, and none of the above shall affect or impair, or prevent the vesting of, any of the LC any LOC Issuer’s or any other Indemnified Party’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC any of such LOC Issuer or other Indemnified Party be liable to Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC each LOC Issuer and each other Indemnified Party (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issueran LOC Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC any of an LOC Issuer or other Indemnified Party, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an LOC Issuer or its related Purchaser Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such LOC Issuer or such related Purchaser Agent under any resulting liability to Seller, Servicer, Originator, any Purchaser, any Agent, any Purchaser Agent or any other Person.
Appears in 1 contract
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC Issuereach Issuing Bank, the Borrowers assume or its Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer each Issuing Bank shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer such Issuing Bank or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuersuch Issuing Bank or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s such Issuing Bank's or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer any Issuing Bank from liability for the LC Issuer’s such Issuing Bank's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer any Issuing Bank or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, each Issuing Bank and the LC Issuer Administrative Agent and their Affiliates (i) may rely on any oral or other communication believed in good faith by such Issuing Bank, the LC Issuer Administrative Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Issuing Bank, the Administrative Agent or their Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Bank, the Administrative Agent or their Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 1 contract
Sources: Credit Agreement (Koppers Inc)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrowers and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent's Affiliates be liable to any VSE Entity the Borrowers for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence, shall not put Agent under any resulting liability to Borrowers or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Teamstaff Inc)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerIssuing Lender, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which that may prove to be invalid or ineffective for any reason; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Lender or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Issuing Lender's or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Lender from liability for the LC Issuer’s Issuing ▇▇▇▇▇▇'s gross negligence or negligence, willful misconduct, fraud or breach in bad faith by the Issuing Lender of its obligations under this Agreement (as finally determined by a court of competent jurisdictionjurisdiction in a final, non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Issuing Lender or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of CreditCredit if the Issuing Lender or such Affiliate shall have reasonably determined that the reason for such dishonor has been eliminated, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Lender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Lender or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 1 contract
Sources: Credit Agreement (Andersons, Inc.)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC IssuerIssuing Bank, the Borrowers assume Swing Line Lender, Administrative Agent and Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Bank or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerIssuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Bank from liability for the LC IssuerIssuing Bank’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Issuing Bank or Issuing Bank’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer Issuing Bank and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuing Bank under any resulting liability to any Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Fairmount Santrol Holdings Inc.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent’s Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent or the Agent’s Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s or the Agent’s Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent’s Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent’s Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent’s Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 1 contract
Sources: Credit Agreement (Penn Virginia Resource Partners L P)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC Issueran Issuing Lender, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer an Issuing Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer applicable Issuing Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which that may prove to be invalid or ineffective for any reason; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuerapplicable Issuing Lender or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuerapplicable Issuing Lender’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer an Issuing Lender from liability for the LC Issuersuch Issuing Lender’s gross negligence or willful misconduct, misconduct or breach in bad faith by such Issuing Lender of its obligations under this Agreement (as finally determined by a court of competent jurisdictionjurisdiction in a final, non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer an Issuing Lender or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer applicable Issuing Lender and each of its Affiliates (iA) may rely on any oral or other communication believed in good faith by the LC Issuer such Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Lender or its Affiliate; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer such Issuing Lender or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.
Appears in 1 contract
Liability for Acts and Omissions. [Innovex] 3rd A&R Credit Agreement 65
(a) As between any VSE Entity Borrower and the LC Issuer, Swing Loan Lender, Agent and L▇▇▇▇▇▇, the Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or Issuer’s Affiliates be liable to any VSE Entity the Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, [Innovex] 3rd A&R Credit Agreement 66 notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuer under any resulting liability to the Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Innovex International, Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of CreditCredit (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY ACT OR INACTION ARISING FROM AGENT’S NEGLIGENCE OR STRICT LIABILITY). In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Englobal Corp)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers, on the one hand, and the LC Issuer, Swing Loan Lender, Agent and Lenders, on the Borrowers assume other hand, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in connection with actions or omissions described in such clauses a final and non-appealable 59 074658.00041/136182926v.10074658.00041/150851455v.1 074658.00041/136182926v.11074658.00041/150851455v.4
(ab) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant a Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliates in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment or order), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ugi Corp /Pa/)
Liability for Acts and Omissions. As between any VSE Entity the Borrower, on the one hand, and the LC IssuerAdministrative Agent, the Borrowers assume LC Lenders and the Lenders, on the other, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries any beneficiary, “Applicant” or “Account Party” of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrative Agent, the LC Issuer Lenders or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular a Letter of Credit Application for such Letter of CreditApplication, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the any LC Issuer Lender or any Lender shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile, electronic mail or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrative Agent, the LC IssuerLenders and the Lenders, including any act acts or omission of omissions by any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Lenders’ rights or powers hereunder. Nothing in the preceding sentence shall relieve the any LC Issuer Lender from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such the preceding sentence. In no event shall the Administrative Agent, any LC Issuer Lender or the Lenders or their respective Affiliates, be liable to the Borrower or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ without limitation attorney fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrative Agent, each LC Issuer Lender, the Lenders and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the applicable LC IssuerLender or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrative Agent, any LC Issuer Lender or the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any LC Lender under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such LC Lender under any resulting liability to the Borrower, any Lender or any other Person, unless such LC Lender shall have acted with gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Credit and Security Agreement (Alpha Natural Resources, Inc.)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers, on the one hand, and the LC Issuer, Swing Loan Lender, Agent and Lenders, on the Borrowers assume other hand, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final and non-appealable judgment or order) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant a Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliates in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment or order), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerAgent, or the Borrowers assume Agent's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Agent shall not be responsible for any of the following, following including any losses or damages to any VSE Entity Loan Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent or the Agent's Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any 37 consequences arising from causes beyond the control of the LC IssuerAgent or the Agent's Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s Agent's or the Agent's Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC Issuer’s Agent's bad faith, gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or the Agent's Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ ' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject to such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting liability to the Borrower or any Bank.
Appears in 1 contract
Sources: Credit Agreement (Covance Inc)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers and the LC other Loan Parties and Issuer, the Borrowers assume Swing Loan Lender, Agent and ▇▇▇▇▇▇▇, each Borrower and Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower or any other Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower or any other Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing ; provided that nothing in the preceding sentence foregoing shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or Issuer’s Affiliates be liable to any VSE Entity Borrower or any other Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Issuer under any resulting liability to any Borrower, any other Loan Party, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Worthington Steel, Inc.)
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchasers and the Purchaser Agents, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof)forged; (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchasers and the Purchaser Agents, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneyswithout limitation Attorneys’ feesCosts), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers and the Purchaser Agents and each of its Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchasers or the Purchaser Agents or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cooper Tire & Rubber Co)
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC Issuereach Issuing Letter of Credit Bank, the Borrowers assume such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such the Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer applicable Issuing Letter of Credit Bank shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular application for an issuance of any Letter of Credit Application for issued by such Issuing Letter of CreditCredit Bank, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer such Issuing Letter of Credit Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer (i) may rely on any oral or other communication believed in good faith by the LC Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Liability for Acts and Omissions. As between Each Borrower agrees that any VSE Entity and action or omission by the LC Issuer, the Borrowers assume all risks of the acts and omissions of, Bank or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person its correspondents in connection with the particular Letter of Credit Application for such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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) the failure of the beneficiary of any such Letter of Credit, or any other Person to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity and any beneficiary of any Letter of Credit or presentation thereunder shall be binding on such Borrower and shall not result in any liability of the Bank or any of its correspondents to such transferee; (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 Borrower in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or absence of the proceeds thereof; (g) the misapplication of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (h) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission of any Government, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court misconduct of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the LC Issuer be liable to any VSE Entity for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of CreditBank. Without limiting the generality of the foregoing, the LC Issuer Bank and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws Laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each, an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. Notwithstanding the foregoing, in no event shall the Bank or its Affiliates be liable to any Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Each Borrower acknowledges that the rights and obligations of the Bank under a Letter of Credit are independent of the existence, performance or nonperformance of any contract or arrangement underlying such Letter of Credit, including contracts or arrangements between the Borrower and the beneficiary of the Letter of Credit and between the Borrower and the Bank.
Appears in 1 contract
Liability for Acts and Omissions. As between any VSE Entity the Seller, on the one hand, and the LC IssuerAdministrator, the Borrowers assume LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other hand, the Seller assumes all risks of the acts and omissions of, or misuse of the Letters any Letter of Credit by, the respective beneficiaries of such Letters Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank, any LC Participant or any Purchaser shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity the Seller and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipherencrypted; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrator, the LC IssuerBank, the LC Participants, the Purchaser Agents and the Purchasers, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any VSE Entity other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ feeswithout limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Issuer Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.
Appears in 1 contract
Liability for Acts and Omissions. As between any VSE Entity Loan Party and the LC IssuerIssuing Lender, or the Borrowers assume Issuing Lender’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Lender shall not be responsible for any of the following, including any losses or damages to any VSE Entity Loan Party or {N0289348 2 } 46 other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Issuing Lender or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerIssuing Lender or its Affiliates, as applicable, including any act or omission of any GovernmentOfficial Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerIssuing Lender’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Issuing Lender from liability for the LC IssuerIssuing Lender’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Issuing Lender or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuing Lender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Issuing Lender or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.{N0289348 2 } 47
Appears in 1 contract
Liability for Acts and Omissions. (i) As between any VSE Entity the Credit Parties and the LC IssuerIssuing Banks, the Borrowers assume Swing Line Lender, the Agents and the Lenders, each Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer Issuing Banks shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (aA) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer an Issuing Bank or any of its Affiliates shall have been notified thereof); (bB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (cC) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Letter of Credit or any such transferee; (dD) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (eE) errors in interpretation of technical terms; (fF) 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; (gG) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hH) any consequences arising from causes beyond the control of the LC Issueran Issuing Bank, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issueran Issuing Bank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer an Issuing Bank from liability for the LC Issuersuch Issuing Bank’s gross negligence negligence, bad faith or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (aA) through (hH) of such sentence. In no event shall the LC Issuer an Issuing Bank or an Issuing Bank’s Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.
(ii) Without limiting the generality of the foregoing, the LC Issuer each Issuing Bank and each of its Affiliates: (iA) may rely on any oral or other communication believed in good faith by the LC Issuer such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (iiB) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiC) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Issuersuch Issuing Bank or its Affiliates; (ivD) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (vE) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (viF) may settle or adjust any claim or demand made on the LC Issuer such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(iii) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put such Issuing Bank under any resulting liability to any Credit Party, any Agent or any Lender.
Appears in 1 contract
Sources: Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Liability for Acts and Omissions. As between any VSE Entity Borrowers and the LC IssuerAgent and Lenders, the Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of CreditCredit (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY ACT OR INACTION ARISING FROM AGENT’S NEGLIGENCE OR STRICT LIABILITY). In furtherance and not in limitation of the respective foregoing, the LC Issuer Agent shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Agent shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC IssuerAgent, including any act or omission of any Governmentgovernmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerAgent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Agent from liability for the LC IssuerAgent’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final non-appealable judgment) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer Agent or Agent’s Affiliates be liable to any VSE Entity Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the LC Issuer Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the LC Issuer Agent or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerAgent or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer Agent or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or intentional misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall not put Agent under any resulting liability to Borrower or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Flotek Industries Inc/Cn/)
Liability for Acts and Omissions. (a) As between any VSE Entity Borrowers, on the one hand, and the LC Issuer, Swing Loan Lender, Agent and Lenders, on the Borrowers assume other hand, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer or any of its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Borrower and any beneficiary of any Letter of Credit or any such transferee; (div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex facsimile or otherwise, whether or not they be in cipher; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the LC Issuer, including any act or omission omission, whether rightful or wrongful, of any Governmentpresent or future de jure or de facto Governmental Body, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer from liability for the LC Issuer’s gross negligence or willful misconduct, misconduct (as finally determined by a court of competent jurisdiction, jurisdiction in a final and non-appealable judgment or order) in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the LC Issuer or its Affiliates be liable to any VSE Entity Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. .
(b) Without limiting the generality of the foregoing, the LC Issuer and each of its Affiliates: (i) may rely on any oral or other communication believed in good faith by the LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant a Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerIssuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the LC Issuer or its Affiliates in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a steamship agent or carrier or any similar document or instrument of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment or order), shall not put Issuer under any resulting liability to any Borrower, Agent or any Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Liability for Acts and Omissions. As between any VSE Entity the Borrowers, on the one hand, and the LC IssuerAdministrative Agent, the Borrowers LC Bank, the LC Participants, the Co-Agents and the Lenders, on the other, the Borrowers, jointly and severally, assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit and by the respective account parties or applicants named on such Letters of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrative Agent, the LC Issuer Bank, the LC Participants, the Co-Agents or the Lenders shall not be responsible for any of the following, including any losses or damages to any VSE Entity or other Person or property relating therefromfor: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Issuer Bank shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign 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; (ciii) the failure of the beneficiary of any such Letter of Credit, or any other Person party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any VSE Entity Loan Party, any Originator or any of their respective Affiliates against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Loan Party, any Originator or any of their respective Affiliates and any beneficiary of any Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) 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; (gvii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the Administrative Agent, the LC IssuerBank, the LC Participants, the Co-Agents and the Lenders, including any act or omission of any GovernmentGovernmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC IssuerBank’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the LC Issuer Bank from liability for the LC Issuer’s its gross negligence or willful misconduct, as finally determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the Administrative Agent, the LC Issuer Bank, the LC Participants, the Co-Agents, the Lenders or their respective Affiliates, be liable to any VSE Entity Loan Party, any Originator or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit. Without limiting the generality of the foregoing, the Administrative Agent, the LC Issuer Bank, the LC Participants, the Co-Agents, the Lenders and each of their respective Affiliates (i) may rely on any oral or other written communication believed in good faith by the LC Issuer such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC IssuerBank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrative Agent, the LC Issuer Bank, the LC Participants, the Co-Agents, the Lenders or their respective Affiliates, in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to any Loan Party, any Originator, any LC Participant or any other Person.
Appears in 1 contract
Sources: Credit and Security Agreement (Universal Health Services Inc)
Liability for Acts and Omissions. As between any VSE Entity Credit Party and the applicable LC Issuer, the Borrowers assume or such LC Issuer’s Affiliates, such Credit Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Revolving Facility Letters of Credit. In furtherance and not in limitation of the foregoing, the such LC Issuer shall not be responsible for any of the following, including any losses or damages to any VSE Entity Credit Party or other Person or property relating therefrom: (ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person party in connection with the particular Letter application for an issuance of Credit Application for any such Revolving Facility Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the such LC Issuer or its Affiliates shall have been notified thereof); (bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Revolving Facility 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; (ciii) the failure of the beneficiary of any such Revolving Facility Letter of Credit, or any other Person party to which such Revolving Facility Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Revolving Facility Letter of Credit or any other claim of any VSE Entity Credit Party against any beneficiary of such Revolving Facility Letter of Credit, or any such transferee, or any dispute between or among any VSE Entity Credit Party and any beneficiary of any Revolving Facility Letter of Credit or any such transferee; (div) 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; (ev) errors in interpretation of technical terms; (fvi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Revolving Facility Letter of Credit or of the proceeds thereof; (gvii) the misapplication by the beneficiary of any such Revolving Facility Letter of Credit of the proceeds of any drawing under such Letter of Credit by the beneficiary of any such Revolving Facility Letter of Credit; or (hviii) any consequences arising from causes beyond the control of the such LC IssuerIssuer or its Affiliates, as applicable, including any act or omission of any GovernmentGovernmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the such LC Issuer’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence shall relieve the such LC Issuer from liability for the such LC Issuer’s bad faith, gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, misconduct in connection with actions or omissions described in such clauses (ai) through (hviii) of such sentence. In no event shall the such LC Issuer or its Affiliates be liable to any VSE Entity Credit Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Revolving Facility Letter of Credit. Without limiting the generality of the foregoing, the applicable LC Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the such LC Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Revolving Facility Letter of Credit, ; (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Revolving Facility Letter of Credit; (iii) may honor a previously dishonored presentation under a Revolving Facility Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the such LC IssuerIssuer or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Revolving Facility Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the such LC Issuer or its Affiliate in any way related to any order issued at the applicant's ’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Revolving Facility Letter of Credit that is the subject to of such orderOrder, notwithstanding that any drafts or other documents presented in connection with such Revolving Facility Letter of Credit fail to conform in any way with such Revolving Facility Letter of Credit. In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any LC Issuer or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such LC Issuer or its Affiliates under any resulting liability to the Company, any other Borrower or any Revolving Lender.
(i) Revolving Facility LC Participations.
(i) Immediately upon each Revolving Facility LC Issuance, the LC Issuer of such Revolving Facility Letter of Credit shall be deemed to have sold and transferred to each Revolving Lender, and each such Revolving Lender (each a “Revolving Facility LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (a “Revolving Facility LC Participation”), to the extent of such Revolving Lender’s Funding Percentage of the Stated Amount of such Revolving Facility Letter of Credit in effect at such time of issuance, in such Revolving Facility Letter of Credit, each substitute letter of credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Revolver Agent for the account of the Revolving Lenders as provided in Section 2.14 and the Revolving Facility LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.14(e)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.
(ii) In determining whether to pay under any Revolving Facility Letter of Credit, a LC Issuer shall not have any obligation relative to the Revolving Facility LC Participants other than to determine that any documents required to be delivered under such Revolving Facility Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Revolving Facility Letter of Credit. Any action taken or omitted to be taken by a LC Issuer under or in connection with any Revolving Facility Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability. In the event that a LC Issuer makes any payment under any Revolving Facility Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.06(h) (by a Revolving Loan or otherwise), such LC Issuer shall promptly notify the Revolver Agent, and the Revolver Agent shall promptly notify each Revolving Facility LC Participant, of such failure, and upon such notice each Revolving Facility LC Participant shall promptly and unconditionally pay to the Revolver Agent for the account of such LC Issuer, the amount of such Revolving Facility LC Participant’s Funding Percentage of such payment in Dollars or in the applicable Designated Foreign Currency (unless the Revolver Agent agrees to payment in Dollars) in which such Revolving Facility Letter of Credit is denominated and in same day funds; provided, however, that no Revolving Facility LC Participant shall be obligated to pay to the Revolver Agent its Funding Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Revolving Facility Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer as determined by a final non-appealable judgment of a court of competent jurisdiction or if at the time of the issuance or extension of a Revolving Facility Letter of Credit, the applicable LC Issuer had actual written notice from a Borrower or another Revolving Lender that an Event of Default had occurred and was continuing. If the Revolver Agent so notifies any Revolving Facility LC Participant required to fund a payment under a Revolving Facility Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Revolving Facility LC Participant shall make available to the Revolver Agent for the account of the relevant LC Issuer such Revolving Facility LC Participant’s Funding Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Revolving Facility LC Participant shall not have so made its Funding Percentage of the amount of such payment available to the Revolver Agent for the account of the relevant LC Issuer, such Revolving Facility LC Participant agrees to pay to the Revolver Agent for the account of such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Revolver Agent for the account of such LC Issuer as follows: (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the date and (ii) at a rate per annum equal to the rate applicable to Loans under the Base Rate on and after the fourth day following the date on which the applicable Letter of Credit was drawn. The failure of any Revolving Facility LC Participant to make available to the Revolver Agent for the account of the relevant LC Issuer its Funding Percentage of any payment under any Revolving Facility Letter of Credit shall not relieve any other Revolving Facility LC Participant of its obligation hereunder to make available to the Revolver Agent for the account of such LC Issuer its Funding Percentage of any payment under any Revolving Facility Letter of Credit on the date required, as specified above, but no Revolving Facility LC Participant shall be responsible for the failure of any other Revolving Facility LC Participant to make available to the Revolver Agent for the account of such LC Issuer such other Revolving Facility LC Participant’s Funding Percentage of any such payment. The failure of the Revolver Agent or the applicable LC Issuer to give any such notice of a drawing of the applicable Revolving Facility Letter of Credit or in sufficient time to enable any Revolving Facility LC Participant to effect such payment on the date therefor shall not relieve any such Revolving Facility LC Participant from its obligations under this Section 2.06(i).
(iii) Whenever a LC Issuer receives a payment of a reimbursement obligation from an LC Obligor as to which the Revolver Agent has received for the account of such LC Issuer any payments from the Revolving Facility LC Participants pursuant to subpart (ii) above, such LC Issuer shall pay to the Revolver Agent and the Revolver Agent shall promptly pay to each Revolving Facility LC Participant that has paid its applicable Funding Percentage thereof, in same day funds, an amount equal to such Revolving Facility LC Participant’s applicable Payment Sharing Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective Revolving Facility LC Participations, as and to the extent so received.
(iv) If the Revolver Agent is required at any time to return to the Company, any LC Obligor or any other Credit Party, or to a trustee, receiver, liquidator, custodian, or any official in any proceeding related to an Insolvency Event, any portion of any payment made by the Company, any LC Obligor or any other Credit Party to the Revolver Agent for the account of the applicable LC Issuer pursuant to this Section in reimbursement of a payment made under the Revolving Facility Letter of Credit or interest or fee thereon, each Revolving Lender shall, on demand of the Revolver Agent, forthwith return to the Revolver Agent for the account of such LC Issuer the amount of its Funding Percentage of any amounts so returned by the Revolver Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Revolving Lender to the Revolver Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.
Appears in 1 contract