06-08-2022 Council Packet - Laserfiche WebLink

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73495160v3 39 for other than its gross negligence, bad faith or willful misconduct in the performance of those express duties. (f) The Fiscal Agent shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or non-fulfillment of contracts, relating to the Project Facilities. In no event shall the Fiscal Agent be liable for incidental, indirect, special, consequential or punitive damages or penalties (including, but not limited to lost profits), even if the Fiscal Agent has been advised of the likelihood of such damages or penalty and regardless of the form of action. (g) The Fiscal Agent shall not be required to give any bond or surety in respect of the execution of said trust and powers or otherwise in respect of this Funding Loan Agreement. (h) Before taking any action requested hereunder by the Noteowners which may require it to expend its own funds, the Fiscal Agent may require satisfactory security or indemnification for the reimbursement of all expenses to which it may be put by reason of any action so taken. The Fiscal Agent shall be under no obligation to institute any suit, or to undertake any proceeding under this Funding Loan Agreement, or to enter any appearance or in any way defend in any suit in which it may be made defendant, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder, until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other anticipated disbursements, and against all liability except to the extent determined by a court of competent jurisdiction to have been caused solely by its own gross negligence or willful misconduct. Nevertheless, the Fiscal Agent may begin suit, or appear in and defend suit, or do anything else in its judgment proper to be done by it as the Fiscal Agent , without indemnity, and in such case the Fiscal Agent shall, to the extent not reimbursed by the Borrower reimburse itself from the monies available under this Funding Loan Agreement for all costs and expenses, outlays and counsel fees and expenses and other reasonable disbursements properly incurred in connection therewith and the Fiscal Agent shall be entitled to a preference therefor over any bonds outstanding hereunder. The Fiscal Agent shall not be entitled to indemnification as a precondition to giving notices of default or taking other actions at the direction of the Funding Lender or the Controlling Person which do not require the Fiscal Agent to expend its own funds or for which funds have been advanced by the Funding Lender or the Controlling Person to the Fiscal Agent in advance of its taking such action. (i) All moneys received by the Fiscal Agent, until used or applied or invested as herein provided, shall be held as special trust funds for the purposes specified in this Funding Loan Agreement and for the benefit and security of the Noteowners of the Funding Loan as herein provided. Such moneys need not be segregated from other funds except to the extent required by law or herein provided, and the Fiscal Agent shall not otherwise be under any liability for interest on any moneys received hereunder except such as may be agreed upon. (j) The Fiscal Agent shall not be bound to ascertain or inquire as to the performance of the obligations of the Borrower or the Governmental Lender under the Borrower Loan Agreement or this Funding Loan Agreement, and shall not be deemed to have, or be required to take, notice of default under this Funding Loan Agreement (other than under Section 5.1(a) or (b), or Section 5.1(c) hereof unless written notice thereof has been received by a Responsible Officer of the Fiscal Agent) or the occurrence of a Determination of Taxability, except (i) in the event the Borrower fails to pay any payment when due, (ii) in the event of an insufficient amount in the Funding Loan Fund (or any account therein) to make a principal or interest payment on the Governmental Notes, (iii) in the event of written notification of a Determination of Taxability an owner of the Governmental Note, (iv) in the event of written notification of such Default by the Controlling Person, the Funding Lender or two or more Noteowners with combined holdings of not less than twenty-five percent (25%) of the principal amount of outstanding Funding Loan, or (v) in the