Liability of Bank. Bank shall be responsible only for performing the wire services expressly provided in this Section and, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall the Bank be responsible for your acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for (and you waive any right to make a claim against Bank with respect to): the use which may be made of any funds transferred pursuant to this Section, or for any acts or omissions on the part of payees with respect to such transfers; the validity, sufficiency, genuineness of, or authority to create, execute or deliver any Payment Order, even if such documents should prove to be in any respect invalid, insufficient, unauthorized, fraudulent or forged; your failure to arrange for delivery of a Payment Order to Bank in sufficient time for Bank to make the transfer at the time you desire; or any other circumstance whatsoever in making or failing to give effect to the actions or payments specified in any Payment Order, except to the extent of direct (and not consequential) damages suffered by you which are proved to be caused directly by Bank’s willful misconduct or gross negligence in giving effect to Payment Orders or other instructions. To the maximum extent permitted by law, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problems.
Appears in 1 contract
Samples: Master Cash Management Agreement
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andCompany and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Company assumes all risks of the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness Trustee with respect to the Trustee's use of transmittal the Letter of Credit. Neither the Bank nor any of its officers or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts or omissions on of the part of payees with respect to such transfersTrustee in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under the Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Bank to the Trustee against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any drafts or any messages by mail, cable, telegraph, telex, telephone, electronic media or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit; except only that the Company shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderCompany, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you the Company which are proved to be the Company proves were caused directly by (i) the Bank’s 's willful misconduct or gross negligence or (ii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in giving effect to Payment Orders good faith believes that it is prohibited by law or other instructionslegal authority from making such payment. To The Bank shall have no obligation to contest any such prohibition. In furtherance and not in limitation of the maximum extent permitted by lawforegoing, the Bank shall NOT may accept documents that appear on their face to be liable in order, without responsibility for further investigation, regardless of any consequential, special, punitive notice or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited information to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemscontrary.
Appears in 1 contract
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Bank, unless Borrower assumes all risks of the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness Trustee with respect to the Trustee's use of transmittal or authorization the Letter of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agentCredit. Bank shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services Neither the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for nor any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees employees, or agents shall be liable to you for or responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts act or omissions on of the part Trustee in connection with the Letter of payees with respect to such transfersCredit; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including any documents presented under the Letter of Credit), or authority to create, execute of any statement in or deliver any Payment Orderendorsement on such documents, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate, or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, or any other failure by the Trustee to arrange comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit under or proceeds of the Letter of Credit, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit; except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderBorrower, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you the Borrower which are proved to be the Borrower proves were caused directly solely by Bank’s (i) the willful misconduct or gross negligence of the Bank or (ii) the wrongful and willful failure by the Bank to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in giving effect to Payment Orders good faith believes that it is prohibited by law or other instructionslegal authority from making such payment. To In furtherance and not in limitation of the maximum extent permitted by lawforegoing, the Bank shall NOT may accept documents that appear on their face to be liable in order, without responsibility for further investigation, regardless of any consequentialnotice or information to the contrary; provided, specialhowever, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage that if the Bank should receive written notification from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant both the Trustee and the Borrower that documents conforming to this Section, even if you have advised Bank the terms of the probability Letter of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited Credit presented to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you Bank are not obligated to pay for a Payment Orderbe honored, and the Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss agrees that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have it will not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if honor such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsdocuments.
Appears in 1 contract
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Bank, unless Borrower assumes all risks of the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness Trustee with respect to the Trustee's use of transmittal or authorization the Letter of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agentCredit. Bank shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services Neither the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for nor any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees employees, or agents shall be liable to you for or responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts act or omissions on of the part Trustee in connection with the Letter of payees with respect to such transfersCredit; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including any documents presented under the Letter of Credit), or authority to create, execute of any statement in or deliver any Payment Orderendorsement on such documents, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate, or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, or any other failure by the Trustee to arrange comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit under or proceeds of the Letter of Credit, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit; except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderBorrower, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you the Borrower which are proved to be the Borrower proves were caused directly solely by Bank’s (i) the willful misconduct or gross negligence of the Bank or (ii) the wrongful and willful failure by the Bank to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in giving effect to Payment Orders good faith believes that it is prohibited by law or other instructionslegal authority from making such payment. To In furtherance and not in limitation of the maximum extent permitted by lawforegoing, the Bank shall NOT may accept documents that appear on their face to be liable in order, without responsibility for further investigation, regardless of any consequentialnotice or information to the contrary; provided, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage however that if the Bank should receive written notification from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant both the Trustee and the Borrower that documents conforming to this Section, even if you have advised Bank the terms of the probability Letter of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited Credit presented to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you Bank are not obligated to pay for a Payment Orderbe honored, and the Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss agrees that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have it will not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if honor such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsdocuments.
Appears in 1 contract
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andCompany and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Company assumes all risks of the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness of transmittal or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or with respect to the beneficiary’s bank (including the return 's use of a Payment Order by such beneficiary Letter of Credit. Neither the Bank nor any of its officers or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made by or on behalf of any funds transferred pursuant to this Section, the beneficiary of a Letter of Credit or for any acts or omissions on by the part of payees with respect to such transfersbeneficiary in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under a Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of a Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to a Letter of Credit, or any other failure by or on behalf of the beneficiary to comply fully with conditions required in order to effect a drawing under a Letter of Credit; (4) the validity or sufficiency of any instrument delivered by or on behalf of the beneficiary or any other Person (other than the Bank) transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make the transfer at the time you desirea drawing under a Letter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under a Letter of Credit; except only that the Company shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderCompany, except to the extent extent, but only to the extent, of direct (and not consequential) any direct, as opposed to special, exemplary, consequential or punitive, damages suffered by you the Company which are proved to be the Company proves were caused directly by Bank’s (i) the willful misconduct or gross negligence of the Bank in giving effect determining whether a Draft presented under a Letter of Credit complied with the terms of the Letter of Credit, (ii) the payment by the Bank under a Letter of Credit presented by the beneficiary for payment after the Stated Expiration Date of the Letter of Credit (except to Payment Orders the extent the Stated Expiration Date is deemed extended under the International Standby Practices (ISP98)), or (iii) the Bank's willful failure or gross negligence in failing to pay under a Letter of Credit after the presentation to it by or on behalf of the beneficiary of a Draft strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other instructionslegal authority from making such payment. To In furtherance and not in limitation of the maximum extent permitted by lawforegoing, the Bank shall NOT may accept documents that appear on their face to be liable in order, without responsibility for further investigation, regardless of any consequential, special, punitive notice or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited information to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemscontrary.
Appears in 1 contract
Samples: Reimbursement Agreement (New Plan Excel Realty Trust Inc)
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Borrower assumes all risks of the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness Trustee with respect to the Trustee's use of transmittal the Letter of Credit. Neither the Bank nor any of its officers or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts or omissions on of the part of payees with respect to such transfersTrustee in connection therewith; (2) except as set forth in subsection 2.06(a)(3) hereof, the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under the Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit unless the documents on their face appear not to comply with the terms of the Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason unless the documents on their face appear not to comply with the terms of the Letter of Credit; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect to the actions or payments specified in any Payment Order, except to the extent of direct (and not consequential) damages suffered by you which are proved to be caused directly by Bank’s willful misconduct or gross negligence in giving effect to Payment Orders or other instructions. To the maximum extent permitted by law, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If make payment under the provisions Letter of this Section or Credit; except only that the law, you are not obligated to pay for Borrower shall have a Payment Orderclaim against the Bank, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable to the Borrower, to the extent, but only for to the difference. Notwithstanding extent, of any other provisions of this Sectiondirect, Bank’s liability as opposed to youconsequential, if any, shall be reduced damages suffered by the amountBorrower which the Borrower proves were caused solely by (i) the Bank's gross negligence or willful misconduct, if any, (ii) or Bank's failure to observe general banking practices or (iii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the loss Letter of Credit, unless the Bank in good faith believes that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order it is prohibited by law or other communication purportedly made on behalf of you which has been executed legal authority from making such payment. In furtherance and charged to you erroneously or without your authorization, but you have not notified Bank in limitation of the error foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or lack of authorization, information to the contrary; provided that if the Bank will have no liability shall receive written notification from both the Trustee and the Borrower that documents conforming to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality terms of the foregoing provisionsLetter of Credit to be presented to the Bank are not to be honored, the Bank shall be excused from failing to act or delay in acting if agrees that it will not honor such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsdocuments.
Appears in 1 contract
Samples: Credit and Security Agreement (Innovative Solutions & Support Inc)
Liability of Bank. Bank shall be responsible only for performing the wire services expressly provided in this Section and, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall the Bank be responsible for your acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for (and you waive any right to make a claim against Bank with respect to): • the use which may be made of any funds transferred pursuant to this Section, or for any acts or omissions on the part of payees with respect to such transfers; • the validity, sufficiency, genuineness of, or authority to create, execute or deliver any Payment Order, even if such documents should prove to be in any respect invalid, insufficient, unauthorized, fraudulent or forged; • your failure to arrange for delivery of a Payment Order to Bank in sufficient time for Bank to make the transfer at the time you desire; or • any other circumstance whatsoever in making or failing to give effect to the actions or payments specified in any Payment Order, except to the extent of direct (and not consequential) damages suffered by you which are proved to be caused directly by Bank’s willful misconduct or gross negligence in giving effect to Payment Orders or other instructions. To the maximum extent permitted by law, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problems.
Appears in 1 contract
Samples: Master Cash Management Agreement
Liability of Bank. Bank shall be responsible only for performing Borrower assumes all risks of the wire services expressly provided in this Section and, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall the Bank be responsible for your acts or omissions of the Beneficiary (including without limitation any transferee) of the amount, accuracy, timeliness Letter of transmittal Credit with respect to its use of the Letter of Credit or authorization proceeds of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoeverDrawing thereunder. Neither Bank nor any of its officers, directors, employees officers or agents directors shall be liable to you for or responsible for: (and you waive any right to make a claim against Bank with respect to): a) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or its proceeds or for any acts or omissions on of the part of payees with respect to such transfersBeneficiary (including any transferee) in connection therewith; (b) the validity, sufficiencysufficiency or genuineness of documents, genuineness of, inaccuracy of any of the statements or authority representations contained in drafts or certificates relating to create, execute such Letter of Credit or deliver of any Payment Orderendorsement(s) thereon, even if such documents should in fact prove to be in any respect or all respects invalid, insufficient, unauthorized, fraudulent or forged; your failure to arrange for delivery (c) payment by Bank against presentation of a Payment Order to Bank in sufficient time for Bank to make documents which do not strictly comply with the transfer at terms of the time you desireLetter of Credit; or (d) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit, except Borrower shall have a claim against Bank, and Bank shall be liable to Borrower, to the actions or payments specified in any Payment Orderextent, except but only to the extent extent, of direct (and not any direct, as opposed to consequential) , special or other damages suffered by you Borrower which are proved to be were actually caused directly by Bank’s 's willful misconduct or gross negligence in giving effect honoring a draft under the Letter of Credit. In furtherance and not in limitation of the foregoing, Bank (and any confirming bank with respect to Payment Orders the Letter of Credit) may accept documents that appear on their face to be in order, and may assume the genuineness and rightfulness of any signature thereon, without responsibility for further investigation, regardless of any notice or other instructions. To information to the maximum extent permitted by lawcontrary; provided, that if the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage receive written notification from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant the Beneficiary and Borrower that documents conforming to this Section, even if you have advised Bank the terms of the probability Letter of such damages if Credit to be presented to Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Orderbe honored, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment orderagrees that it will not subsequently honor such documents, Borrower shall hold Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused harmless from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemshonor.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Ipec Holdings Inc)
Liability of Bank. Bank shall be responsible only for performing the wire services expressly provided in this Section and, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Neither the Bank be responsible for your acts nor any of their officers or omissions (including without limitation the amount, accuracy, timeliness of transmittal or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you responsible for (and you waive any right to make a claim against Bank with respect to): a) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts acts, omissions, errors, interruptions, delays in transmission, dispatch or omissions on delivery of any message or advice, however transmitted, of the part Bank in connection with the Letter of payees Credit; (b) any action, inaction or omission which may be taken by the Bank in connection with respect to such transfersthe Letter of Credit; (c) the validity, sufficiency, sufficiency or genuineness ofof documents, or authority to create, execute or deliver of any Payment Orderendorsements thereon, even if such documents should in fact prove to be in any respect or all respects invalid, insufficient, unauthorized, fraudulent or forged; your (d) payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to arrange for delivery bear any reference or adequate reference to the Letter of a Payment Order to Bank in sufficient time for Bank to make the transfer at the time you desireCredit; or (e) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit, except only that the Company shall have a claim against the Bank for acts or events described in the immediately preceding clauses (a) through (d), and the Bank shall be liable to the actions or payments specified in any Payment OrderCompany, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you it which are proved to be the Company proves were caused directly by (i) the Bank’s 's willful misconduct or gross negligence in giving effect determining whether documents presented under the Letter of Credit comply with the terms of the Letter of Credit or (ii) the Bank's willful failure or gross negligence in failing to Payment Orders pay under the Letter of Credit after the presentation to it by the Escrow Agent of a certificate strictly complying with the terms and conditions of the Letter of Credit. The Company further agrees that any action taken or other instructions. To the maximum extent permitted omitted by law, the Bank shall NOT be liable for any consequential, special, punitive under or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting Letter of Credit or the generality related draft or documents, if done without gross negligence, shall be effective against the Company as to the rights, duties and obligations of the foregoing provisionsBank and shall not place the Bank under any liability to the Company. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from the Company and the Escrow Agent that sufficiently conforming (in the opinion of the Bank) documents presented to the Bank are not to be excused from failing to act or delay in acting if honored, the Bank agrees that they will not honor such failure or delay is caused documents; provided, further, however, that the Company hereby acknowledges that such dishonor by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing constitute a circumstance that the Bank may seek indemnification for under Section 7.4. The foregoing is not intended to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program limit the liability of the Federal Reserve or any rule or regulation Bank under the Letter of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsCredit.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Jacor Communications Inc)
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Borrower assumes all risks of the Bank be responsible for your acts or omissions (including without limitation of the amountTrustee, accuracythe Letter of Credit Bank or the Standby Bank with respect to the Letter of Credit, timeliness the Participating Bank Agreement or the Standby Reimbursement Agreement. Neither the Bank nor any of transmittal its officers or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or the Standby Letter of Credit or for any acts or omissions on of the part Trustee or the Letter of payees Credit Bank in connection therewith or with respect to such transfersthe Participating Bank Agreement; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under the Letter of Credit, the Participating Bank Agreement or the Standby Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Letter of Credit Bank, the Bank or the Standby Bank against presentation of documents which do not comply with the terms of the Letter of Credit, the Participating Bank Agreement or the Standby Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to the Letter of Credit, the Participating Bank Agreement or the Standby Letter of Credit, or any other failure by the Trustee, the Letter of Credit Bank or the Standby Bank to comply fully with conditions required in order to effect or honor a drawing under the Letter of Credit or the Standby Letter of Credit or in order to entitle the Letter of Credit Bank or the Standby Bank to payment under the Participating Bank Agreement or the Standby Reimbursement Agreement; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to effect a Payment Order drawing under the Letter of Credit or the Standby Letter of Credit or in order to entitle the Letter of Credit Bank in sufficient time for or the Standby Bank to make payment under the transfer at Participating Bank Agreement or the time you desireStandby Reimbursement Agreement; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit, the Participating Bank Agreement, the Standby Letter of Credit or the Standby Reimbursement Agreement; except only that the Borrower shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderBorrower, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you the Borrower which are proved to be the Borrower proves were caused directly by by: (i) the Bank’s 's willful misconduct or gross negligence negligence; or (ii) the Bank's willful failure to pay under the Participating Bank Agreement or the Standby Reimbursement Agreement after written demand by the Letter of Credit Bank or the Standby Bank to the Bank for payment of an amount due and payable under the Participating Bank Agreement or the Standby Reimbursement Agreement, unless the Bank in giving effect to Payment Orders good faith believes that it is prohibited by law or other instructions. To the maximum extent permitted by law, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage legal authority from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of making such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemspayment.
Appears in 1 contract
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andCity and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall City assumes all risks of the Bank be responsible for your acts or omissions (including without limitation of the amount, accuracy, timeliness Fiscal Agent with respect to the Fiscal Agent’s use of transmittal the Letter of Credit. Neither the Bank nor any of its officers or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts or omissions on of the part of payees with respect to such transfersFiscal Agent in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under the Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to the Letter of Credit, or any other failure by the Fiscal Agent to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect make payment under the Letter of Credit; except only that the City shall have a claim against the Bank, and the Bank shall be liable to the actions or payments specified in any Payment OrderCity, except to the extent extent, but only to the extent, of direct (and not any direct, as opposed to consequential) , damages suffered by you the City which are proved to be the City proves were caused directly solely by (i) the Bank’s willful misconduct or gross negligence or (ii) the Bank’s willful failure to pay under the Letter of Credit after the presentation to it by the Fiscal Agent of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in giving effect to Payment Orders good faith and without gross negligence, believes that it is prohibited by law or other instructionslegal authority from making such payment. To In furtherance and not in limitation of the maximum extent permitted by lawforegoing, the Bank shall NOT may accept documents that appear on their face to be liable in order, without responsibility for further investigation, regardless of any consequential, special, punitive notice or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited information to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemscontrary.
Appears in 1 contract
Samples: Of Reimbursement Agreement
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Borrower assumes all risks of the Bank be responsible for your acts or omissions of the Beneficiary with respect to the Beneficiary’s use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Beneficiary in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the amountLetter of Credit), accuracy, timeliness of transmittal or authorization of any Payment Order received from youstatement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) or those the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other person failure by the Beneficiary to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or entitysufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, including without limitation in whole or in part, which may prove to be invalid or ineffective for any Federal Reserve reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower shall have a claim against the Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including and the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank shall be liable to the Borrower, to the extent, but only for direct to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused solely by (i) the Bank’s gross negligence or willful misconduct in performing determining whether documents presented under the wire services Letter of Credit complied with the terms of the Letter of credit or (ii) the Bank’s willful failure to pay under the Letter of Credit after the presentation to it by the Beneficiary of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is required to perform under this Sectionprohibited by law or other legal authority from making such payment. You understand In furtherance and not in limitation of the foregoing, the Bank may accept documents that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for (and you waive any right to make a claim against Bank with respect to): the use which may be made of any funds transferred pursuant to this Section, or for any acts or omissions appear on the part of payees with respect to such transfers; the validity, sufficiency, genuineness of, or authority to create, execute or deliver any Payment Order, even if such documents should prove their face to be in order, without responsibility for further investigation, regardless of any respect invalid, insufficient, unauthorized, fraudulent notice or forged; your failure to arrange for delivery of a Payment Order to Bank in sufficient time for Bank to make the transfer at the time you desire; or any other circumstance whatsoever in making or failing to give effect information to the actions or payments specified in any Payment Order, except contrary; provided that if the Bank shall receive written notification from both the Beneficiary and the Borrower that documents conforming to the extent terms of direct (and not consequential) damages suffered by you which are proved the Letter of Credit to be caused directly by Bank’s willful misconduct or gross negligence in giving effect presented to Payment Orders or other instructions. To the maximum extent permitted by lawBank are not to be honored, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of agrees that it will not honor such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If under the provisions of this Section or the law, you are not obligated to pay for a Payment Order, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable only for the difference. Notwithstanding any other provisions of this Section, Bank’s liability to you, if any, shall be reduced by the amount, if any, of the loss that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order or other communication purportedly made on behalf of you which has been executed and charged to you erroneously or without your authorization, but you have not notified Bank of the error or lack of authorization, Bank will have no liability to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsdocuments.
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Steadfast Income REIT, Inc.)
Liability of Bank. Bank shall be responsible only for performing (a) As between the wire services expressly provided in this Section andBorrower and the Company and the Bank, unless the law expressly provide otherwise, Bank shall not be liable for its actions or omissions in performing those wire services, nor shall Borrower and the Bank be responsible for your Company assume all risks of the acts or omissions (including without limitation of the amount, accuracy, timeliness Trustee with respect to the Trustee's use of transmittal the Letter of Credit. Neither the Bank nor any of its officers or authorization of any Payment Order received from you) or those of any other person or entity, including without limitation any Federal Reserve Bank, transmission or communications facility, data processing entity, third party, any beneficiary or intermediary Financial Institution or beneficiary’s bank (including the return of a Payment Order by such beneficiary or Financial Institution), and no such person shall be deemed Bank’s agent. Bank directors shall be liable only for direct damages caused by the Bank’s gross negligence or willful misconduct in performing the wire services the Bank is required to perform under this Section. You understand that Bank shall have no liability or responsibility for any loss resulting from delays in delivery of wired funds to a foreign country or for any monetary loss resulting from a change in any conversion rate occurring between the request and delivery of such funds or from any other cause whatsoever. Neither Bank nor its officers, directors, employees or agents shall be liable to you for responsible for: (and you waive any right to make a claim against Bank with respect to): 1) the use which may be made of any funds transferred pursuant to this Section, the Letter of Credit or for any acts or omissions on of the part of payees with respect to such transfersTrustee in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness ofof any documents (including without limitation any documents presented under the Letter of Credit), or authority to create, execute of any statement therein or deliver any Payment Orderendorsement thereon, even if any such documents documents, statements or endorsements should in fact prove to be in any respect or all respects invalid, insufficient, unauthorizedfraudulent, fraudulent forged, inaccurate or forgeduntrue; your (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to arrange bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of a Payment Order to Bank any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in sufficient time for Bank the transmission or otherwise of any document or draft required in order to make a drawing under the transfer at the time you desireLetter of Credit; or (7) any other circumstance circumstances whatsoever in making or failing to give effect to the actions or payments specified in any Payment Order, except to the extent of direct (and not consequential) damages suffered by you which are proved to be caused directly by Bank’s willful misconduct or gross negligence in giving effect to Payment Orders or other instructions. To the maximum extent permitted by law, the Bank shall NOT be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Section, including without limitation any loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Section, even if you have advised Bank of the probability of such damages if Bank breaches its duties hereunder. Bank’s entire liability and your sole remedy under this Section for damages (monetary or otherwise) resulting from claims made by you or any other third party arising from or related to any and all causes covered by this Section shall be limited to the lesser of the amount of actual damages incurred by you; or $2,500. If make payment under the provisions Letter of this Section Credit; except only that the Borrower or the law, you are not obligated to pay for Company shall have a Payment Orderclaim against the Bank, and Bank has charged the amount of the Payment order to you or you have otherwise paid the Payment order, Bank shall refund to you the amount of the Payment Order, except in the case of a Payment Order executed erroneously in an amount greater than intended by you, in which case Bank shall be liable to the Borrower and the Company, to the extent, but only for to the difference. Notwithstanding extent, of any other provisions of this Sectiondirect, Bank’s liability as opposed to youconsequential, if any, shall be reduced damages suffered by the amount, if any, Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's gross negligence or willful misconduct or (ii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the loss Letter of Credit, unless the Bank in good faith believes that Bank could have prevented or recovered had you exercised ordinary care to discover the error. If you have received notice of a Payment Order it is prohibited by law or other communication purportedly made on behalf of you which has been executed legal authority from making such payment. In furtherance and charged to you erroneously or without your authorization, but you have not notified Bank in limitation of the error foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or lack of authorization, information to the contrary; provided that if the Bank will have no liability shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to you for any subsequent similar occurrence even if Bank would otherwise be liable to you in connection with the subsequent occurrence. Without limiting the generality terms of the foregoing provisionsLetter of Credit to be presented to the Bank are not to be honored, the Bank shall be excused from failing to act or delay in acting if agrees that it will not honor such failure or delay is caused by the lack of sufficient funds in your account, any inaccuracy or ambiguity in your instructions or Payment Orders, if such failure or delay is caused by any legal constraint, interruption of transmission, failure or disruption of a communication facility, labor disputes, equipment failure, fire, flood, earthquakes or other natural disasters, war, emergency conditions, other acts or omissions of any third party, or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing to transmit or delay in transmitting a Payment Order if such transmittal would result in Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States or state governmental regulatory authority or funds transfer system. You understand and agree that Bank’s fees for these funds transfer services have been established in contemplation of the limitations on liability stated in this Section and your agreement to review Payment Order confirmations and notify Bank immediately of any discrepancies, errors or problemsdocuments.
Appears in 1 contract
Samples: Reimbursement and Security Agreement (Dover Downs Entertainment Inc)
