Common use of Liability of the Issuing Bank Clause in Contracts

Liability of the Issuing Bank. (a) The liability of the Issuing Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to any direct damages suffered by the Applicant that are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Issuing Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Issuing Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.

Liability of the Issuing Bank. (a) The liability of the Issuing Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to any direct damages suffered by the Applicant that are caused directly by Issuing Bank’s gross negligence or willful misconduct misconduct, as determined in a final, non-appealable judgment by a court of competent jurisdiction, in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Issuing Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Issuing Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.

Liability of the Issuing Bank. (a) The liability of the Issuing Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to any direct damages suffered by the Applicant that are caused directly by the Issuing Bank’s or another Indemnified Person’s gross negligence or willful misconduct misconduct, as determined in a final, non-appealable judgment by a court of competent jurisdiction, in (i) honoring a presentation that does not at least substantially comply with the Letter of Credit, (ii) failing to honor a presentation that strictly complies with the Letter of Credit or (iii) retaining Drawing Documents presented under the Letter of Credit. In no event shall the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Issuing Bank and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Issuing Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.

Liability of the Issuing Bank. The Borrower assumes all risks of the acts or omissions of the users of any Letter of Credit and all risks of the misuse of any Letter of Credit. Neither the Issuing Bank, nor any of its officers, directors, employees or administrative agents shall be liable or responsible for: (a) The liability the use which may be made of any Letter of Credit or for any acts or omissions of any Person and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement or endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment against presentation of documents which do not comply with the terms of the applicable Letter of Credit, including failure of any documents to bear any reference or adequate reference to such Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except only that the Borrower shall have a claim against the Issuing Bank, and the Issuing Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited liable to any direct the Borrower to the extent, but only to the extent, of damages suffered by the Applicant that are Borrower which were caused directly by (i) the Issuing Bank’s 's gross negligence or willful misconduct as determined in (ia final, non-appealable judgment by a court of competent jurisdiction) honoring a presentation that does not at least substantially in determining whether documents presented under any Letter of Credit comply with the terms of such Letter of Credit, Credit (it being understood that any such noncompliance in any immaterial respect shall not be deemed gross negligence or willful misconduct of the Issuing Bank) or (ii) failing the Issuing Bank's willful failure to honor a presentation that strictly complies with the pay under any Letter of Credit after the presentation to it by the beneficiary thereof of a draft, certificate or (iii) retaining Drawing Documents presented under other document strictly complying with the terms and conditions of such Letter of Credit. In no event shall furtherance and not in limitation of the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary hereinforegoing, the Issuing Bank and the other Indemnified Persons shall notmay accept documents that appear on their face to be in order, under any circumstances whatsoeverwithout responsibility for further investigation, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether any notice or information to the contrary unless the Issuing Bank or any Indemnified Person shall have been advised ordered not to accept such documents by a court of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damagescompetent jurisdiction.

Liability of the Issuing Bank. (a) The liability Company assumes all risks of the Issuing Bank (acts or omissions of the Trustee, the Remarketing Agent, any Paying Agent or any other Indemnified Person) underagent of the Trustee, in connection with and/or arising out the Remarketing Agent or any Paying Agent and any transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to their use of the form Letter of Credit. Neither the Issuing Bank nor any of its officers or legal grounds directors shall be liable or responsible for (a) the use of the action Letter of Credit or proceedingfor any acts or omissions of the Trustee and any transferee in connection therewith, shall (b) the validity or genuineness of documents, or of any endorsement thereon, even if such documents should in fact prove to be limited to in any direct damages suffered or all respects invalid, fraudulent or forged, (c) payment by the Applicant that are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a Bank against presentation that does of documents which do not at least substantially 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 (iid) any other circumstances whatsoever in making or failing to honor make payment under the Letter of Credit; PROVIDED, HOWEVER, that the Company shall have a presentation that strictly complies claim against the Issuing Bank, and the Issuing Bank shall be liable to the Company, to the extent of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (i) the Issuing Bank's willful misconduct or gross negligence in determining whether documents presented under the Letter of Credit comply with the terms of the Letter of Credit or (iiiii) retaining Drawing Documents the Issuing Bank's wrongful failure to make lawful payment under the Letter of Credit after the presentation to the Issuing Bank by the Trustee or a successor trustee under the Indenture of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit (it being understood that in making such payment the Issuing Bank's exclusive reliance on the documents presented to the Issuing Bank in accordance with the terms of the Letter of Credit as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of Credit proves to forged, fraudulent, invalid or insufficient in any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the Issuing Bank). The Issuing Bank is hereby expressly authorized and directed to honor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between the Issuer, the Company, the Remarketing Agent, the Trustee, any Paying Agent, or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit. In no event shall the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Issuing Bank are true and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Issuing Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damagescorrect.

Liability of the Issuing Bank. (a) The liability Company assumes all risks of the Issuing Bank (acts or omissions of the Trustee, the Remarketing Agent, any Paying Agent or any other Indemnified Person) underagent of the Trustee, in connection with and/or arising out the Remarketing Agent or any Paying Agent and any transferee of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless with respect to their use of the form Letter of Credit. Neither the Issuing Bank nor any of its officers or legal grounds directors shall be liable or responsible for (a) the use of the action Letter of Credit or proceedingfor any acts or omissions of the Trustee and any transferee in connection therewith, shall (b) the validity or genuineness of documents, or of any endorsement thereon, even if such documents should in fact prove to be limited to in any direct damages suffered or all respects invalid, fraudulent or forged, (c) payment by the Applicant that are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a Bank against presentation that does of documents which do not at least substantially 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 (iid) any other circumstances whatsoever in making or failing to honor make payment under the Letter of Credit; provided, however, that the Company shall have a presentation that strictly complies claim against the Issuing Bank, and the Issuing Bank shall be liable to the Company, to the extent of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (i) the Issuing Bank’s willful misconduct or gross negligence in determining whether documents presented under the Letter of Credit comply with the terms of the Letter of Credit or (iiiii) retaining Drawing Documents the Issuing Bank’s wrongful failure to make lawful payment under the Letter of Credit after the presentation to the Issuing Bank by the Trustee or a successor trustee under the Indenture of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit (it being understood that in making such payment the Issuing Bank’s exclusive reliance on the documents presented to the Issuing Bank in accordance with the terms of the Letter of Credit as to any and all matters set forth therein, whether or not any statement or any document presented pursuant to the Letter of Credit proves to forged, fraudulent, invalid or insufficient in any respect or any statement whatsoever, shall not be deemed willful misconduct or gross negligence of the Issuing Bank). The Issuing Bank is hereby expressly authorized and directed to honor any demand for payment which is made under the Letter of Credit without regard to, and without any duty on its part to inquire into the existence of, any disputes or controversies between the Issuer, the Company, the Remarketing Agent, the Trustee, any Paying Agent, or any other person or the respective rights, duties or liabilities of any of them, or whether any facts or occurrences represented in any of the documents presented under the Letter of Credit. In no event shall the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary herein, the Issuing Bank are true and the other Indemnified Persons shall not, under any circumstances whatsoever, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether the Issuing Bank or any Indemnified Person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damagescorrect.

Liability of the Issuing Bank. (a) The liability Each of the Issuing Bank Borrower and each Foreign Subsidiary (but as to each Foreign Subsidiary, only with respect to Foreign Letters of Credit issued on its behalf), assumes all risks of the acts or omissions of the users of any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless such Foreign Letter of Credit in the case of such Foreign Subsidiary) and all risks of the form misuse of any Letter of Credit (any such Foreign Letter of Credit in the case of such Foreign Subsidiary). Neither the Issuing Bank, nor any of its officers, directors, employees or legal grounds agents shall be liable or responsible for: (a) the use which may be made of any Letter of Credit or for any acts or omissions of any Person and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement or endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment against presentation of documents which do not comply with the terms of the action applicable Letter of Credit, including failure of any documents to bear any reference or proceedingadequate reference to such Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except only that the Borrower or such Foreign Subsidiary shall have a claim against the Issuing Bank, and the Issuing Bank shall be limited liable to any direct the Borrower or such Foreign Subsidiary to the extent, but only to the extent, of damages suffered by the Applicant that are Borrower or such Foreign Subsidiary which were caused directly by (i) the Issuing Bank’s 's gross negligence or willful misconduct (as determined in (ia final, non-appealable judgment by a court of competent jurisdiction) honoring a presentation that does not at least substantially in determining whether documents presented under any Letter of Credit comply with the terms of such Letter of Credit, Credit (it being understood that any such noncompliance in any immaterial respect shall not be deemed gross negligence or willful misconduct of the Issuing Bank) or (ii) failing the Issuing Bank's willful failure to honor a presentation that strictly complies with the pay under any Letter of Credit after the presentation to it by the beneficiary thereof of a draft, certificate or (iii) retaining Drawing Documents presented under other document strictly complying with the terms and conditions of such Letter of Credit. In no event shall furtherance and not in limitation of the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary hereinforegoing, the Issuing Bank and the other Indemnified Persons shall notmay accept documents that appear on their face to be in order, under any circumstances whatsoeverwithout responsibility for further investigation, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether any notice or information to the contrary unless the Issuing Bank or any Indemnified Person shall have been advised ordered not to accept such documents by a court of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damagescompetent jurisdiction.

Liability of the Issuing Bank. The Borrower assumes all risks of the acts or omissions of the users of any Unexpired Letter of Credit and all risks of the misuse of any Unexpired Letter of Credit. Neither the Issuing Bank, nor any of its officers, directors, employees or agents shall be liable or responsible for: (a) The liability the use which may be made of any Unexpired Letter of Credit or for any acts or omissions of any Person and any transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement or endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment against presentation of documents that do not comply with the terms of the applicable Unexpired Letter of Credit, including failure of any documents to bear any reference or adequate reference to such Unexpired Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Unexpired Letter of Credit, except only that the Borrower shall have a claim against the Issuing Bank, and the Issuing Bank (or any other Indemnified Person) under, in connection with and/or arising out of this Agreement, any Related Document or the Letter of Credit (or any pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited liable to any direct the Borrower to the extent, but only to the extent, of damages suffered by the Applicant Borrower that are were caused directly by (i) the Issuing Bank’s 's gross negligence or willful misconduct (as determined in (ia final, non-appealable judgment by a court of competent jurisdiction) honoring a presentation that does not at least substantially in determining whether documents presented under any Unexpired Letter of Credit comply with the terms of such Unexpired Letter of Credit, Credit (it being understood that any such noncompliance in any immaterial respect shall not be deemed gross negligence or willful misconduct of the Issuing Bank) or (ii) failing the Issuing Bank's willful failure to honor a presentation that strictly complies with the pay under any Unexpired Letter of Credit after the presentation to it by the beneficiary thereof of a draft, certificate or (iii) retaining Drawing Documents presented under other document strictly complying with the terms and conditions of such Unexpired Letter of Credit. In no event shall furtherance and not in limitation of the Issuing Bank be deemed to have failed to act with due diligence or reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Issuing Bank (or any other Indemnified Person) for wrongfully honoring a presentation under the Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Issuing Bank in respect of an honored presentation under the Letter of Credit, plus interest. Notwithstanding anything to the contrary hereinforegoing, the Issuing Bank and the other Indemnified Persons shall notmay accept documents that appear on their face to be in order, under any circumstances whatsoeverwithout responsibility for further investigation, be liable for any punitive, consequential, indirect or special damages or losses regardless of whether any notice or information to the contrary unless the Issuing Bank or any Indemnified Person shall have been advised ordered not to accept such documents by a court of the possibility thereof or of the form of action in which such damages or losses may be claimed. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement, any Related Document or the Letter of Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damagescompetent jurisdiction.