Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. (b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction). (c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral. (d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action. (e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 31 contracts
Sources: Credit Agreement (Blue Owl Credit Income Corp.), Credit Agreement (Blue Owl Credit Income Corp.), Credit Agreement (Blue Owl Technology Income Corp.)
Limitation on Liability. (ai) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(ii) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(biii) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Asset Documents.
(civ) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(dv) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(vi) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(vii) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 17 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 13 contracts
Sources: Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (TCG Bdc, Inc.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 13.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 13 contracts
Sources: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall Adviser will not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, judgment or mistake of law or for any action taken loss suffered by Adviser or omitted to be taken by it or them as Document Custodian under or the Trust in connection with the performance of this Agreement, except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for its services or their own a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or willful misconduct from reckless disregard by it of its duties under this Agreement.
(each b) The Trust may, but shall not be required to, make advance payments to the Adviser in connection with the expenses of the Adviser in defending any action with respect to which damages or equitable relief might be sought against the Adviser under this Section (which payments shall be reimbursed to the Trust by the Adviser as determined provided below) if the Trust receives (i) a written affirmation of the Adviser’s good faith belief that the standard of conduct necessary for the limitation of liability in this Section has been met and (ii) a finalwritten undertaking to reimburse the Trust whether or not the Adviser shall be deemed to have liability under this Section, non-appealable judgment such reimbursement to be due upon (1) a final decision on the merits by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) other body before whom the proceeding was brought as to whether or not the contentAdviser is liable under this Section or (2) in the absence of such a decision, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability upon the request of the Related Contracts, Adviser for reimbursement by a majority vote of a quorum consisting of trustees of the Collateral Loans or any other Collateral, and will not be required to and will not make any representations Trust who are neither “interested persons” of the Trust (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) nor parties to the validity or value proceeding (“Disinterested Non-Party Trustees”). In addition, at least one of the following conditions must be met: (A) the Adviser shall provide a security for such Adviser undertaking, (B) the Trust shall be insured against losses arising by reason of any lawful advance, or (C) a majority of a quorum of the Collateral.
Disinterested Non-Party Trustees of the Trust or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (d) It as opposed to a full trial-type inquiry), that there is expressly agreed and acknowledged reason to believe that the Document Custodian is Adviser ultimately will be found not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionunder this Section.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 12 contracts
Sources: Investment Advisory Agreement (Guggenheim Active Allocation Fund), Investment Advisory Agreement (Guggenheim Taxable Municipal Managed Duration Trust), Investment Advisory Agreement (Guggenheim Enhanced Equity Income Fund (F/K/a Old Mutual/Claymore Long-Short Fund))
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 9 contracts
Sources: Loan and Servicing Agreement (Golub Capital BDC, Inc.), Loan and Servicing Agreement (Fifth Street Finance Corp.), Loan and Servicing Agreement (Fifth Street Finance Corp)
Limitation on Liability. (a) The Document Custodian Trustee may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Trustee may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian Trustee may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Trustee shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties.
(cd) The Document Custodian Trustee makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Trustee shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Trustee shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Trustee.
(f) The Trustee shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Trustee is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Trustee may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Agent, as applicable. The Document Custodian Trustee shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Trustee be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Trustee shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, unless appointed as successor Collateral Custodian hereunder, the Trustee shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 9 contracts
Sources: Loan and Servicing Agreement (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp), Omnibus Amendment (Ares Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its duties in taking and retaining custody of the Required Loan Documents.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 8 contracts
Sources: Loan and Servicing Agreement (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp), Omnibus Amendment (Ares Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the oral instructions of the Administrative Agent or the Collateral Agent. The Document Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Custodian receives written notice of such matter. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publicly available information shall not constitute notice or actual knowledge of the Collateral Custodian.
(b) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to the Collateral.
(h) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunderhereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Document Custodian mayAdministrative Agent, prior to the occurrence of an Event of Default, request instructions from the Borrower and/or any related bank agent, Obligor or the Services Provider similar party, and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf Custodian shall have no responsibility for the accuracy of the Majority Lenders), any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking any action unless update its records (as it has received instructions from may deem necessary or appropriate) based on such Persons, as applicable. The Document Custodian shall in all events have no liability, risk information or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. data.
(i) In no event shall the Document Collateral Custodian be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ej) The Document In no event shall the Collateral Custodian shall have no responsibilities be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 6 contracts
Sources: Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 6 contracts
Sources: Loan and Servicing Agreement (Golub Capital BDC, Inc.), Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionPortfolio.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 5 contracts
Sources: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (Business Development Corp of America)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its duties in taking and retaining custody of the Related Documents.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Custodian.
(f) The Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to its duties hereunderthe Collateral.
(h) Without prejudice to the generality of the foregoing, the Document Custodian may, prior shall be without liability to the occurrence of an Event of DefaultBorrower, request instructions from the Borrower or the Services Provider and mayCollateral Manager, after the occurrence of an Event of Default, request instructions from the Administrative Agent or any other Person for any damage or loss resulting from or caused by events or circumstances beyond the Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral Agent (each on behalf of the Majority Lenders)Manager, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk collateral Administrator or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage (including any Authorized Person of any kind whatsoever (including but not limited thereof) in its instructions to lost profits)the Custodian; or changes in applicable law, even if the Document Custodian has been advised of the likelihood of such loss regulation or damage and regardless of the form of actionorders.
(ei) The Document In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator, the Collateral Manager, the Administrative Agent, Lenders or Custodian shall have no responsibilities be served by a third party with any type of levy, attachment, writ or duties court order with respect to any Collateral Loan or Related Contract while Documents or (ii) a third party shall institute any court proceeding by which any Related Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all court papers, orders, documents and other materials concerning such proceedings. The Custodian shall, to the extent permitted by law, continue to hold and maintain all the Related Documents that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Custodian shall dispose of such Related Contract is not in its possessionDocuments as directed by the Collateral Agent or Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Custodian incurred as a result of such proceedings shall be borne by the Borrower.
Appears in 5 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any signature, certificate, instrument, statement, resolution, request, direction, consent, order, report, bond, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document document, paper or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Collateral Agent. Any electronically signed document delivered via email from a person purporting to be a Responsible Officer shall be considered signed or executed by such Responsible Officer on behalf of the applicable Person. The Document Custodian Collateral Agent shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely, in good faith, on any such electronic signature without any liability with respect thereto.
(b) The Collateral Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties.
(d) The Collateral Agent makes no warranty or representation shall not be taken by it responsible for any statements, warranties or them as Document Custodian under representations made in or in connection with this AgreementAgreement by any other party hereto, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian or any other party under this Agreement or the other Transaction Documents and shall not be required to monitor the performance of the Collateral Custodian or any other party under this Agreement or the other Transaction Documents. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulation) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
Appears in 5 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written (including electronic) instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Advisors and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsany Borrower Advisor or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (FS Investment Corp II), Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Credit Agreement (Blue Owl Capital Corp), Credit Agreement (Blue Owl Capital Corp), Credit Agreement (Owl Rock Capital Corp)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementfacsimile, requestemail, waiver, consent, report, letter electronic transmission or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions (including any instructions provided by facsimile, email or other electronic transmission) of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. The Document Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through agents or attorneys, and the Document Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it. Each of the protections, reliances, indemnities and immunities offered to the Collateral Agent in Article XII shall be afforded to the Document Custodian.
(bc) Neither the The Document Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its duties in taking and retaining custody of the Related Documents.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Document Custodian shall not be obligated to take any action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Document Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Document Custodian.
(f) The Document Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to its duties hereunderthe Collateral.
(h) Without prejudice to the generality of the foregoing, the Document Custodian may, prior shall be without liability to the occurrence of an Event of DefaultBorrower, request instructions from the Borrower or the Services Provider and mayCollateral Manager, after the occurrence of an Event of Default, request instructions from the Administrative Agent or any other Person for any failure or delay in the performance or its obligations hereunder because of, or for any damage or loss resulting from or caused by, events or circumstances beyond the Document Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral Manager, Collateral Administrator or the Administrative Agent (each on behalf including any Responsible Officer of any thereof) in its instructions to the Majority Lenders)Document Custodian; or changes in applicable law, and regulation or orders.
(i) In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator, the Collateral Manager, the Administrative Agent, Lenders or Document Custodian shall be entitled at served by a third party with any type of levy, attachment, writ or court order with respect to any Loan or Related Documents or (ii) a third party shall institute any court proceeding by which any Related Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all times to refrain from taking any action unless it has received instructions from court papers, orders, documents and other materials concerning such Persons, as applicableproceedings. The Document Custodian shall in shall, to the extent permitted by law, continue to hold and maintain all events have no liabilitythe Related Documents that are the subject of such proceedings pending a final, risk nonappealable order of a court of competent jurisdiction permitting or cost for any action taken pursuant to and in compliance with the instruction directing disposition thereof. Upon final determination of the Administrative Agent or the Collateral Agent. In no event shall such court, the Document Custodian be liable for punitiveshall dispose of such Related Documents as directed by the Collateral Agent or Administrative Agent, special, indirect or consequential loss or damage which shall give a direction consistent with such determination. Expenses of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood incurred as a result of such loss or damage and regardless of proceedings shall be borne by the form of actionBorrower.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon upon, and need not verify, any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Receivable Files.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to its duties hereunderthe Collateral.
(h) Notwithstanding anything to the contrary herein, the Document Collateral Custodian mayshall not be liable for any delays in performance for causes beyond its control, prior to including, but not limited to, acts of war or terrorism, powerline failures, fire, flood, epidemic, acts of the occurrence of an Event of DefaultBorrower, request instructions from the Borrower Servicer or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or restriction by civil or military authority in their sovereign or contractual capacities. In the event of any such delay, performance shall be extended for so long as such period of delay.
(i) The Collateral Agent (each Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement on behalf of the Majority Lenders)Borrower, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent initial Servicer or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionSecured Parties.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent receives written or email notice of such matter. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publically available information shall not constitute notice or actual knowledge of the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times obligated to refrain from taking take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed or delivered by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Controlling Lender.
(b) The Collateral Agent. The Document Custodian Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgmentjudgment or act done or step taken or omitted by it, in good faith, or for any action taken mistakes of fact or omitted to be taken by law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(f) The Collateral Agent shall not be required to expend or risk its own funds, in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case parties to the Collateral.
(h) The Collateral Agent may exercise any reasonable question arises as to of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through agents or attorneys and the Collateral Agent shall not be responsible for any willful misconduct or gross negligence on the part of any non-Affiliated agent or attorney appointed hereunder with due care by it hereunder, the Document Custodian may, prior .
(i) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, request instructions Default or Collateral Manager Event of Default, unless the Collateral Agent has received written notice from the Administrative Agent, the Controlling Lender, the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Manager thereof.
(j) The Collateral Agent (each on behalf of the Majority Lenders), and shall its affiliates may receive additional compensation that could be entitled at all times deemed to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall be in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. ’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments.
(k) In no event shall the Document Custodian Collateral Agent be responsible or liable for punitiveany failure or delay in the performance of its obligations hereunder arising out of or caused, specialdirectly or indirectly, indirect by forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or consequential terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or damage malfunctions of any kind whatsoever utilities, communications or computer (including but not limited software or hardware) services; it being understood that the Collateral Agent shall use reasonable efforts which are consistent with accepted practices in the applicable industry to lost profits), even if resume performance as soon as practicable under the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actioncircumstances.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Specialty Lending Corp)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Administrative Agent or (ii) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS KKR Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written (including electronic) instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Advisors and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Borrower Advisors or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (FS Investment Corp II), Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificatecertificate (including any Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, instructionletter, statementfacsimile, request, waiver, consent, report, letter electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent receives written or email notice of such matter. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publicly available information shall not constitute notice or actual knowledge of the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times obligated to refrain from taking take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written (including electronic) instructions of any designated officer of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the CollateralCollateral or as to whether any of the Collateral satisfies the Eligibility Criteria (in each case except as expressly set forth in this Agreement). The Collateral Agent shall not be obligated to take any action hereunder (including any action at the direction of the Administrative Agent or the Servicer) that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence and continuation of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and continuation of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Custodian It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). The Collateral Agent shall not be liable for failing to perform or delay in performing its specified duties hereunder which result from or is caused by a failure or delay on the part of the Administrative Agent, the Servicer, or any other Person in furnishing necessary, timely and accurate information to the Collateral Agent. The Collateral Agent shall not be liable for the acts or omissions of the Administrative Agent, the Servicer, the Collateral Custodian or any other Person under this Agreement and shall not be required to monitor the performance of the Administrative Agent, the Servicer or the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no duty to perform any of the duties of the Administrative Agent, the Servicer or the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes, lockouts, pandemic, epidemic, quarantine, national emergency, embargo, government action (including any laws, ordinances, regulations), interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement. The Collateral Agent may execute any of its duties by or through its subsidiaries, affiliates, agents or attorneys-in-fact, provided that, no such delegations shall relieve the Collateral Agent of its responsibilities or duties with respect to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any Related Contract while agents or attorney-in-fact selected by it with reasonable care.
(k) The Collateral Agent and its respective affiliates, directors, officers, agents or employees shall not be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any Advance hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower, Servicer or Administrative Agent; (iii) the satisfaction of any condition specified in Article III; or (iv) the validity, effectiveness or genuineness of this Agreement, the other Transaction Documents or any other instrument or writing furnished in connection herewith. Without prejudice to the Collateral Agent's duties under this Article X or any other provision of any Transaction Document, the Collateral Agent shall be under no obligation to take any action to collect from any Obligor any amount payable by such Related Contract Obligor on the Loan Asset or any other Collateral under any circumstances, including if payment is refused after due demand.
(l) In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the relevant party to timely provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein. In the absence of an instruction from the Borrower, Servicer or Administrative Agent, as applicable pursuant to the terms of this Agreement, all funds in any account held under this Agreement shall be held uninvested.
(m) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (collectively, "Applicable Banking Laws"), the Collateral Agent may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Collateral Agent to comply with Applicable Banking Laws.
(n) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except for reasonable care of any of the Collateral in its possessionpossession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any of the Collateral or responsibility for (i) ascertaining or taking action with respect to calls, maturities, tenders or other matters relative to any of the Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any of the Collateral.
(o) Without limitation to the provisions set forth herein, the Collateral Custodian and Account Bank shall have the same rights, protections, benefits, immunities and indemnities afforded to the Collateral Agent pursuant to this Article X; provided that, such rights, protections and benefits shall be in addition to any rights, protections and benefits afforded the Collateral Custodian and Account Bank (as the case may be) under this Agreement or any other Transaction Documents.
(p) Subject to the provisions of this Section 10.06, delivery of reports, documents and other information to the Collateral Agent is for informational purposes only and the Collateral Agent's receipt of the foregoing shall not constitute actual or constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein or any other related document.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund), Loan and Servicing Agreement (AGTB Private BDC), Loan and Servicing Agreement (AGTB Private BDC)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the oral instructions of the Administrative Agent or the Collateral Agent. The Document Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Custodian receives written notice of such matter. Notice or knowledge of any matter by W▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publicly available information shall not constitute notice or actual knowledge of the Collateral Custodian.
(b) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to the Collateral.
(h) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunderhereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Document Custodian mayAdministrative Agent, prior to the occurrence of an Event of Default, request instructions from the Borrower and/or any related bank agent, Obligor or the Services Provider similar party, and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf Custodian shall have no responsibility for the accuracy of the Majority Lenders), any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking any action unless update its records (as it has received instructions from may deem necessary or appropriate) based on such Persons, as applicable. The Document Custodian shall in all events have no liability, risk information or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. data.
(i) In no event shall the Document Collateral Custodian be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ej) The Document In no event shall the Collateral Custodian shall have no responsibilities be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 3 contracts
Sources: Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Finance Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any signature, certificate, instrument, statement, resolution, request, direction, consent, order, report, bond, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document document, paper, or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such noticesignature, instructioncertificate, statement certificateinstrument, statement, resolution, request, waiverdirection, consent, opinionorder, report, receipt bond, opinion, notice, letter or other document, paper or documentelectronic communication. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Collateral Agent. Any electronically signed document delivered via email from a person purporting to be a Responsible Officer shall be considered signed or executed by such Responsible Officer on behalf of the applicable Person. The Document Collateral Custodian shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto.
(b) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. The duties, obligations and responsibilities of the Collateral Custodian shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Custodian. Any permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) In no event shall the Collateral Custodian be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(j) The Document Collateral Custodian shall have no responsibilities responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or duties re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(k) The Collateral Custodian may assume the genuineness of any Required Loan Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Loan Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Related Contract while Collateral to be held by the Collateral Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine whether any such Related Contract original security or instrument has been or is not required to be issued or made available in its possessionrespect of any Collateral or to compel or cause delivery thereof to the Collateral Custodian.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Administrative Agent or (ii) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties as related to this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Documentparties to the Collateral Portfolio.
(h) In no event shall the Collateral Custodian be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Agreement. In The Collateral Custodian will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond the Collateral Custodian’s control.
(i) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of and during the continuance of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or partiesparties (if applicable). The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the oral instructions of the Administrative Agent or the Collateral Agent. The Document Custodian Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent receives written notice of such matter.
(b) The Collateral Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined in a final, non-appealable judgment by a court omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case parties to the Collateral.
(h) The Collateral Agent shall not be under any reasonable question arises as duty or obligation to its duties hereundertake any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that is not expressly required under this Agreement (x) unless and until (and to the Document Custodian may, extent) expressly so directed by the Administrative Agent or (y) prior to the occurrence Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of an the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of a Lender, to the extent that this Agreement provides such Lender the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including a Default, Event of Default or Collateral Manager Default, request instructions unless written notice thereof is received by a Responsible Officer of the Collateral Agent.
(i) The Collateral Agent may exercise any of its rights or powers hereunder (or under any other Transaction Document) or perform any of its duties hereunder or thereunder either directly or, by or through agents or attorneys appointed hereunder with due care by it, and the Collateral Agent shall not be liable for the actions or omissions of any such non-Affiliated agent and attorney-in-fact appointed by it with due care.
(j) The Collateral Agent shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the Administrative Agent or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Administrative Agent or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Agent’s own willful misconduct, bad faith or gross negligence. The Collateral Agent shall not be liable for failing to perform or delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower or the Services Provider and mayCollateral Manager, after the occurrence of an Event of Default, request instructions from the Administrative Agent or another Person in furnishing necessary, timely and accurate information to the Collateral Agent.
(k) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document or electronic communication. The Collateral Agent shall not be deemed to have knowledge or written notice of any matter unless actually known to a Responsible Officer of the Collateral Agent. It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (each on behalf including, without limitation, recalculations to be performed in respect of the Majority Lenders)matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, Obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking update its records (as it may deem necessary or appropriate) based on such information or data. Nothing herein shall impose or imply any action unless it has received instructions from duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such Personsinformation or data, as applicable. The Document Custodian shall or to determine or monitor on an independent basis whether any issuer of the Collateral is in all events have no liability, risk default or cost for any action taken pursuant to and in compliance with the instruction underlying documents governing or securing such securities, from time to time.
(l) The Collateral Agent shall be under no obligation to exercise or honor any of the rights or powers vested in it by this Agreement or any other Transaction Document at the request or direction of the Administrative Agent (or any other Person authorized or permitted to direct the Collateral Agent. Agent hereunder) pursuant to this Agreement, unless the Administrative Agent (or such other Person) shall have offered the Collateral Agent security or indemnity reasonably acceptable to the Collateral Agent against costs, expenses and liabilities (including any legal fees) that might reasonably be incurred by it in compliance with such request or direction.
(m) In no event shall the Document Custodian Collateral Agent be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(en) In no event shall the Collateral Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
(o) In case any reasonable question arises as to its duties hereunder, the Collateral Agent may, prior to the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Collateral Manager and may, after the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from the Collateral Manager or the Administrative Agent, as applicable. The Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of, prior to the occurrence of an Event of Default or the Facility Maturity Date, the Collateral Manager, or the Administrative Agent.
(p) The Document Custodian Collateral Agent shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of any Base Rate, Daily Simple SOFR, Term SOFR or any other Benchmark (or any other applicable index, floating rate, Interest Rate or Benchmark Replacement), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event, Benchmark Replacement Date, Benchmark Unavailability period or Disruption Event, (ii) to select, determine or designate any Benchmark Replacement or other alternate benchmark rate, or other successor or replacement rate, or whether any conditions to the designation of such a rate have no responsibilities been satisfied, or duties (iii) to select, determine or designate any Benchmark Replacement Adjustment or any other adjustment or other modifier to any Benchmark Replacement or other replacement or successor rate or index, or (iv) to determine whether or what Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing and, with respect to each Loan bearing interest at a floating rate, the Collateral Agent shall not have any Related Contract while responsibility or liability to (w) monitor the status of any Base Rate, Daily Simple SOFR, Term SOFR or any other Benchmark or other applicable index, floating rate or reference rate, (x) determine whether a substitute index, floating rate or reference rate should or could be selected, (y) determine the selection of any such Related Contract is substitute index, floating rate or reference rate, and (z) exercise any right related to the foregoing on behalf of the Administrative Agent, the Borrower, the Collateral Manager, the Lenders or any other Person.
(q) The Collateral Agent shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in its possessionthis Agreement as a result of the unavailability of any Base Rate, Daily Simple SOFR, Term SOFR or any other Benchmark (or any Benchmark Replacement or other applicable index, floating rate or other Interest Rate) and absence of any Benchmark Replacement or other replacement index or floating rate, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, including, without limitation, the Administrative Agent, the Borrower or the Collateral Manager, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties.
Appears in 3 contracts
Sources: Loan and Security Agreement (CION Investment Corp), Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian Indenture Collateral Agent nor any of its directors, officers, agents, officers or employees shall be liable for any error of judgment, or for any mistake of fact or law or for any action taken or omitted to be taken by it or them as Document Custodian under hereunder, or in connection herewith, except that the Indenture Collateral Agent shall be liable for its negligence, bad faith or willful misconduct; nor shall the Indenture Collateral Agent be responsible for the validity, effectiveness, value, sufficiency or enforceability against the Issuer of this Indenture or any of the Collateral (or any part thereof). Subject to Section 6.01(a), the Indenture Collateral Agent shall incur no liability to the Issuer or the Issuer Secured Parties for any action taken or omitted to be taken by the Indenture Collateral Agent in connection with this Agreementthe Collateral, except for its or their own gross negligence the negligence, bad faith or willful misconduct on the part of the Indenture Collateral Agent, and, further, shall incur no liability to the Issuer Secured Parties except for negligence, bad faith or willful misconduct in carrying out its duties to the Issuer Secured Parties. Subject to Section 6.16, the Indenture Collateral Agent shall be protected and shall incur no liability to any such party in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document reasonably believed by the Indenture Collateral Agent to be genuine and to have been duly executed by the appropriate signatory, and (each as determined absent actual knowledge to the contrary) the Indenture Collateral Agent shall not be required to make any independent investigation with respect thereto. The Indenture Collateral Agent shall at all times be free independently to establish to its reasonable satisfaction, but shall have no duty to independently verify, the existence or nonexistence of facts that are a condition to the exercise or enforcement of any right or remedy hereunder or under any of the Basic Documents. The Indenture Collateral Agent may consult with counsel, and shall not be liable for any action taken or omitted to be taken by it hereunder in a finalgood faith and in accordance with the advice of such counsel. The Indenture Collateral Agent shall not be under any obligation to exercise any of the remedial rights or powers vested in it by this Indenture or to follow any direction from the Controlling Party unless it shall have received reasonable security or indemnity satisfactory to the Indenture Collateral Agent against the costs, non-appealable judgment expenses and liabilities which might be incurred by a court it.
(b) No provision of competent jurisdiction)this Indenture shall require the Indenture Collateral Agent to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c) The Document Custodian makes no warranty or representation and Without limiting the generality of this Section 6.15, the Indenture Collateral Agent shall have no responsibility duty (i) to see to any recording, filing or depositing of this Indenture or any agreement referred to herein or any financing statement evidencing a security interest in the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, (iv) to confirm or verify the contents of any reports or certificates delivered to the Trustee pursuant to this Indenture or the Sale and Servicing Agreement believed by the Indenture Collateral Agent to be genuine and to have been signed or presented by the proper party or parties, or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s, the Seller’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as custodian of the Receivable Files under the Sale and Servicing Agreement.
(d) The Indenture Collateral Agent will be regarded as making no representations and having no responsibilities (except as expressly set forth in this Agreementherein) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the any Notes or Collateral Loans or any other Collateralrepresented thereby, and will not be required to and will not make any representations as to the validity validity, value or value of any genuineness of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian Indenture Collateral Agent may execute any of the powers hereunder or perform any duties hereunder either directly or through agents or attorneys; provided, however, that the execution of such powers by any such agents or attorneys shall have no responsibilities not diminish or duties with respect relieve the Indenture Collateral Agent for responsibility therefor to any Related Contract while the same degree as if the Indenture Collateral Agent itself had executed such Related Contract is not in its possessionpowers.
Appears in 3 contracts
Sources: Indenture (Franklin Receivables Auto Trust 2003-1), Indenture (Franklin Auto Trust 2004-2), Indenture (Franklin Auto Trust 2003-2)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrowers and/or any related bank agent, obligor or duties similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(k) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(l) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Agent in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower hereby agrees that it shall provide the Collateral Agent with such Related Contract is information as it may reasonably request including, but not in its possessionlimited to, such Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify the identities of such Borrower such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence Collateral.
(h) The Collateral Agent may execute any of an Event of Defaultthe trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or that the Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost responsible for any action taken pursuant to and in compliance with willful misconduct or gross negligence on the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage part of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss non-Affiliated agent or damage and regardless of the form of actionattorney appointed with due care by it hereunder.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Strategic Income Corp), Loan and Security Agreement (Fifth Street Senior Floating Rate Corp.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrowers and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) The Collateral Custodian shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(k) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Custodian in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such Related Contract is information as it may request including, but not in its possessionlimited to, such Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify such Borrower’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith, including, but not limited to, in connection any requirement to obtain certificated Pledged Equity from the Borrower or Holdings, except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation (except as expressly set forth in this Agreement) and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralLoan Asset File, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralLoan Assets. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other parties to a Loan Document. In Asset.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.), Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.), Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any signature, certificate, instrument, statement, resolution, request, direction, consent, order, report, bond, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document document, paper, or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such noticesignature, instructioncertificate, statement certificateinstrument, statement, resolution, request, waiverdirection, consent, opinionorder, report, receipt bond, opinion, notice, letter or other document, paper or documentelectronic communication. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Collateral Agent. Any electronically signed document delivered via email from a person purporting to be a Responsible Officer shall be considered signed or executed by such Responsible Officer on behalf of the applicable Person. The Document Collateral Custodian shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely, in good faith, on any such electronic signature without any liability with respect thereto.
(b) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. The duties, obligations and responsibilities of the Collateral Custodian shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Custodian. Any permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) In no event shall the Collateral Custodian be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(j) The Document Collateral Custodian shall have no responsibilities responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or duties re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(k) The Collateral Custodian may assume the genuineness of any Required Loan Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Loan Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Related Contract while Collateral to be held by the Collateral Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine whether any such Related Contract original security or instrument has been or is not required to be issued or made available in its possessionrespect of any Collateral or to compel or cause delivery thereof to the Collateral Custodian.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (1) the written instructions of any designated officer of the Administrative Agent or (2) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Loan Documents.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificatecertificate (including an Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, instructionletter, statementfacsimile, request, waiver, consent, report, letter electronic transmission or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed or presented by the proper party or parties. The Document Custodian Any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Responsible Officer shall not be bound considered signed or executed by such Responsible Officer on behalf of the applicable Person, and the Collateral Agent shall have no duty to make any independent investigation inquire into or investigate the facts authenticity or matters stated in authorization of any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral AgentManager. The Collateral Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be within the discretion or powers conferred upon it, as applicableor taken by it pursuant to any direction or instruction by which it is governed hereunder, and no party shall have any right of action whatsoever against the Document Custodian as a result or omitted to be taken by it by reason of the Document Custodian acting lack of direction or instruction required hereby for such action.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times obligated to refrain from taking take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.), Loan and Security Agreement (Kayne Anderson BDC, Inc.), Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Limitation on Liability. (a1) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(2) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b3) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Loan Documents.
(c4) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralAssets, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralAssets. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(d5) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(6) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(7) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionAssets.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 3 contracts
Sources: Loan Certificate and Servicing Agreement (Capitalsource Inc), Loan Certificate and Servicing Agreement (Capitalsource Inc), Loan Certificate and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written (including electronic) instructions of any designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral. or as to whether any of the Collateral satisfies the Eligibility Criteria (in each case except as expressly set forth in this Agreement). The Collateral Custodian shall not be obligated to take any action hereunder (including any action at the direction of the Administrative Agent or the Servicer) that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral. The Collateral Custodian shall in no event have any liability for the actions or omissions of the Administrative Agent, the Servicer, or any other Loan DocumentPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Administrative Agent, the Servicer, or any other Person. In The Collateral Custodian shall not be liable for failing to perform or delay in performing its specified duties hereunder which result from or is caused by a failure or delay on the part of the Administrative Agent, the Servicer, or any other Person in furnishing necessary, timely and accurate information to the Collateral Custodian.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence and continuation of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and continuation of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties with respect data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) In no event shall the Collateral Custodian be liable for any Related Contract while such Related Contract is failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not in its possessionlimited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes, lockouts, embargo, government action (including any laws, ordinances, regulations), interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund), Loan and Servicing Agreement (AGTB Private BDC), Loan and Servicing Agreement (AGTB Private BDC)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, written notice, instruction, statement, certificate, request, waiver, consent, instrument, opinion, report, letter or other paper or document delivered furnished to it and that in accordance with this Agreement, which it in good faith it reasonably believes to be genuine and that has been signed or presented by the proper party (which in the case of any instruction from or on behalf of the Borrower shall be a Responsible Officer) or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it selected with due care and the advice or opinion of such counsel shall not be full and complete authorization and protection in respect of liable for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the The Document Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)duties.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Document Custodian shall not be obligated to take any legal action hereunder that might in its reasonable judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Document Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Document Custodian.
(f) The Document Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral.
(h) The Document Custodian may assume the genuineness of any such Required Loan Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Loan Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral to be held by the Document Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Document Custodian, and the Document Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to be issued or made available in respect of any Collateral or to compel or cause delivery thereof to the Document Custodian. Without prejudice to the generality of the foregoing, the Document Custodian shall be without liability to the Borrower, the Collateral Manager, the Administrative Agent or any other Loan DocumentPerson for any damage or loss resulting from or caused by events or circumstances beyond the Document Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, natural disasters of any kind, or other similar events or acts (it being understood that the Document Custodian shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances); errors by the Borrower, the Collateral Manager or the Administrative Agent (including any Responsible Officer of any thereof) in its instructions to the Document Custodian; or changes in applicable law, regulation or orders.
(i) The Document Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or, by or through agents or attorneys, and the Document Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it. Neither the Document Custodian nor any of its affiliates, directors, officers, shareholders, agents or employees will be liable to the Collateral Manager, the Borrower or any other Person, except by reason of acts or omissions by the Document Custodian constituting bad faith, willful misconduct, gross negligence or reckless disregard of the Document Custodian’s duties hereunder. The Document Custodian shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the Administrative Agent, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Administrative Agent, or another Person except to the extent that such inaccuracies or errors are caused by the Document Custodian’s own bad faith, willful misconduct, gross negligence or reckless disregard of its duties hereunder.
(j) In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence and continuation of an Event of Default, request instructions from the Borrower or the Services Provider Collateral Manager and may, after the occurrence and continuation of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Administrative Agent, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for special, indirect, punitive, special, indirect incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ek) The Document Custodian shall not be deemed to have no responsibilities knowledge or duties with respect notice of any matter unless actually known to any Related Contract while such Related Contract is not in its possessiona Responsible Officer of the Document Custodian.
Appears in 2 contracts
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementelectronic transmission, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. The Collateral Custodian may perform any and all its duties and exercise its rights and powers by or through any one or more agents or sub-agents appointed by it; provided that the Collateral Custodian shall not be responsible for the actions or omissions of any agent or sub-agent appointed with due care by it hereunder.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 8.2(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Borrower or the Services Provider Collateral Manager and may, after the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties with respect data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) In no event shall the Collateral Custodian be liable for any Related Contract while such Related Contract is not failure or delay in the performance of its possessionobligations hereunder because of circumstances beyond its control, including acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Lending Corp), Loan and Servicing Agreement (Business Development Corp of America)
Limitation on Liability. (a) The Document Custodian Trustee may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Trustee may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian Trustee may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Trustee shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Loan Documents.
(cd) The Document Custodian Trustee makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Trustee shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Trustee shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Trustee.
(f) The Trustee shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Trustee is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. parties to the Collateral.
(h) In case any reasonable question arises as to its duties hereunder, the Document Custodian Trustee may, prior to the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Trustee shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Trustee be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Collateral Custodian nor any of its directors, officers, agents, directors or employees shall be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it such Person, in good faith, or them as Document Custodian under for any mistakes of fact or law, or for anything that such Person may do or refrain from doing in connection with this Agreement, herewith except for its or their own gross negligence or in the case of such Person’s willful misconduct (each as determined or grossly negligent performance or omission of such Person’s duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of such Person’s duties in taking and retaining custody of the Required Loan Documents.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. The permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document; provided that if the form thereof is specifically prescribed in any way by the terms of this Agreement, the Collateral Custodian shall examine the same to determine whether it substantially conforms on its face to such requirements hereof.
(j) Nothing herein shall obligate the Collateral Custodian to commence, prosecute or defend legal proceedings in any instance, whether on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or relating to this Agreement or the services contemplated hereby.
(k) In acting hereunder and under the Control Agreement, the Bank shall be entitled to the same protections, rights, immunities and indemnities as are afforded the Collateral Custodian.
(l) The Collateral Custodian shall have no responsibilities liability for losses arising from any cause beyond its control, including acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, tornadoes or other disaster, or any delay, error, omission or default of mail, telegraph, cable or wireless agency or operator, or the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. However, the Collateral Custodian shall take all reasonable actions to mitigate any losses due to the occurrence of any of the events in the preceding sentence and shall perform all duties and actions required of them to the fullest extent possible and should the Collateral Custodian fail to be able to perform as required, the Collateral Custodian shall notify the Servicer and the Administrative Agent as soon as practicable of such occurrence.
(m) The Collateral Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Collateral Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with respect reasonable due care; provided that the Administrative Agent and the Servicer have consented to any Related Contract while such Related Contract is not in its possessionappointment.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (1) the written instructions of any designated officer of the Administrative Agent or (2) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Asset Documents.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its duties in taking and retaining custody of the Related Documents.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Custodian.
(f) The Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to its duties hereunderthe Collateral.
(h) Without prejudice to the generality of the foregoing, the Document Custodian may, prior shall be without liability to the occurrence of an Event of DefaultBorrower, request instructions from the Borrower or the Services Provider and mayCollateral Manager, after the occurrence of an Event of Default, request instructions from the Administrative Agent or any other Person for any damage or loss resulting from or caused by events or circumstances beyond the Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral Agent (each on behalf of the Majority Lenders)Manager, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk collateral Administrator or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage (including any Authorized Person of any kind whatsoever (including but not limited thereof) in its instructions to lost profits)the Custodian; or changes in applicable law, even if the Document Custodian has been advised of the likelihood of such loss regulation or damage and regardless of the form of actionorders.
(ei) The Document In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator, the Collateral Manager, the Administrative Agent, Lenders or Custodian shall have no responsibilities be served by a third party with any type of levy, attachment, writ or duties court order with respect to any Loan or Related Contract while Documents or (ii) a third party shall institute any court proceeding by which any Loan Related Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all court papers, orders, documents and other materials concerning such proceedings. The Custodian shall, to the extent permitted by law, continue to hold and maintain all the Related Documents that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Custodian shall dispose of such Related Contract is not in its possessionDocuments as directed by the Collateral Agent or Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Custodian incurred as a result of such proceedings shall be borne by the Borrower.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written (including electronic) instructions of any designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) The Collateral Custodian shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(k) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Custodian in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such Related Contract is information as it may request including, but not in its possessionlimited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Limitation on Liability. (a) The Document Custodian may conclusively rely on Intermediary shall not have any duties or obligations except those expressly set forth herein and shall be fully protected in acting upon any certificatesatisfy those duties expressly set forth herein. Without limiting the generality of the foregoing, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian Intermediary shall not be bound subject to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt fiduciary or other paper implied duties, and the Intermediary shall not have any duty to take any discretionary action or documentexercise any discretionary powers. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions None of the Administrative Agent Intermediary, any Affiliate of the Intermediary, or any officer, agent, stockholder, partner, member, director or employee of the Collateral Agent, as applicable, and no party Intermediary or any of their Affiliates shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting liability, whether direct or indirect and whether in contract, tort or otherwise (where so instructedi) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or any of them as Document Custodian under hereunder or in connection with this Agreement, except for its herewith unless there has been a final judicial determination by a court of competent jurisdiction beyond all applicable appeals that such act or their own omission was performed or omitted in bad faith or constituted gross negligence or willful misconduct or reckless disregard of such party’s duties or obligations or (each as determined ii) for any action taken or omitted to be taken by the Intermediary in a finalgood faith at the express direction of the Issuer or the Trustee. In addition, non-appealable judgment by a court the Intermediary shall not be responsible or have any liability for making any investment or reinvestment of competent jurisdiction).
(c) any cash balance in the Accounts pursuant to the terms of this Agreement and the Indenture. The Document Custodian makes no warranty or representation and liabilities of the Intermediary shall have no responsibility (except as be limited to those expressly set forth in this Agreement. With the exception of (x) as to this Agreement, (y) relevant terms used herein and expressly defined in the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability Indenture and (z) the provisions of the Related ContractsIndenture expressly referred to herein, the Collateral Loans Intermediary is not responsible for or any other Collateral, and will not be required to and will not make any representations as to the validity or value chargeable with knowledge of any of the Collateralterms or conditions contained in any agreement referred to herein.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Indenture (Ares Strategic Income Fund), Indenture (Ares Capital Corp)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under the Control Agreement or this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, unless appointed as successor Collateral Custodian hereunder, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Limitation on Liability. (ai) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementtelegram, request, waiver, consent, report, letter electronic mail or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Collateral Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or any designated officer of the Collateral Agent. The Document Collateral Custodian shall not have any liability to any Secured Party in connection with following the written or verbal instruction of the Collateral Agent.
(ii) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(biii) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its negligent performance of its duties in taking and retaining custody of the Required Asset Documents.
(civ) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Pledge Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Custodian Pledged Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Pledge Agreement) of any of the Custodian Pledged Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(dv) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Pledge Agreement and no covenants or obligations shall be implied in this Pledge Agreement against the Collateral Custodian.
(vi) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(vii) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionPledged Collateral.
(eviii) The Document Collateral Custodian shall have be under no responsibilities responsibility or duties duty with respect to the disposition of any Related Contract Asset Files while such Related Contract is Asset Files are not in its possession.
(ix) The Collateral Custodian may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness.
(x) The Collateral Custodian shall not be responsible to the Pledgors, the Collateral Agent, the Servicer or any other party for recitals, statements or warranties or representations of the Pledgors contained herein or in any document, or be bound to ascertain or inquire as to the performance or observance of any of the terms of this Pledge Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein.
(xi) The Collateral Custodian is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Collateral Custodian is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(xii) The Initial Borrower shall indemnify and hold the Collateral Custodian harmless from and against all claims, liabilities, damages, losses, fees (including reasonable out-of-pocket attorney’s fees and expenses) and costs and expenses incurred by the Collateral Custodian as a result of the entering into and performance of its duties hereunder, unless such claims, liabilities, damages, loss, fees, costs and expenses shall arise from the Collateral Custodian’s gross negligence or willful misconduct. The Collateral Custodian’s rights to indemnification shall survive the termination of this Pledge Agreement.
(xiii) The Collateral Custodian shall have no duty or obligation to review or be responsible for the contents of the Indenture, the Credit Agreement, the Intercreditor Agreement, or any other document related to the Credit Agreement Obligations or Note Obligations, to which it is not a party. To the extent of any conflict between this Pledge Agreement and any of the foregoing documents as it relates to the duties and obligations of the Collateral Custodian, the provisions of this Pledge Agreement shall control.
Appears in 2 contracts
Sources: Pledge Agreement (Capitalsource Inc), Pledge Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Collateral Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Administrative Agent, the Collateral Manager, the Borrower, or the requisite number of Lenders, as the case may be. If the Collateral Agent requests instructions from the Administrative Agent, the Collateral Manager, the Borrower, or the Lenders with respect to any action or omission in connection with this Agreement or any other Transaction Document, the Collateral Agent shall be entitled (without incurring any liability therefor) to refrain from taking such action and continue to refrain from acting unless and until the Collateral Agent shall have received written instructions from the Administrative Agent, the Collateral Manager, the Borrower, or the Lenders, as applicable, with respect to such request.
(b) The Collateral Agent shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement or any other Transaction Document Custodian at the request or direction of the Required Lenders or Administrative Agent unless it shall have been provided indemnity satisfactory to it against the costs, expenses (including the fees and expenses of its attorneys and counsel), and liabilities which may be incurred by it in compliance with or in performing such request or direction.
(c) The Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. The Document Custodian Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent receives written or email notice of such matter.
(d) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper, electronic communication or document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent shall examine the same to determine whether it conforms on its face to the requirements hereof.
(e) The Collateral Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bf) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cg) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in Section 4.4 this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral. The Collateral Agent shall not be obligated to take any action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(dh) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(i) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(j) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing or overseeing the performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence Collateral.
(k) The Collateral Agent may execute any of an Event of Defaultthe trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or that the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any non-Affiliated agent or attorney appointed with due care by it hereunder.
(each on behalf l) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services, terrorism, labor disputes, disease, epidemic, pandemic, quarantine, national emergency, or the unavailability of the Majority LendersFederal Reserve Bank wire or telex or other wire or communication facility).
(m) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking any action unless update its records (as it has received instructions from such Persons, as applicable. may deem necessary or appropriate).
(n) The Document Custodian Collateral Agent shall in all events have no liability, risk or cost liability for any action taken pursuant to and in compliance with failure, inability or unwillingness on the instruction part of the Lenders, the Administrative Agent Agent, the Collateral Manager or the Borrower to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement or the other Transaction Documents, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(o) The Collateral Agent shall not be bound to make any investigation into the creation, perfection or priority of any Lien purported to be created by this Agreement or any other Transaction Document. The Collateral Agent shall not have any duty or responsibility in respect of (i) any recording, filing, or depositing of this this Agreement, any other Transaction Document or any other agreement or instrument, monitoring or filing any financing statement or continuation statement evidencing a security interest, the maintenance of any such recording, filing or depositing or any re-recording, re-filing or re-depositing of any thereof, or otherwise monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in or related to the Collateral, (ii) the acquisition or maintenance of any insurance or (iii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral.
(p) In no event shall the Document Custodian Collateral Agent be responsible or liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including including, but not limited to lost profitsto, loss of profit), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(eq) The right of the Collateral Agent to perform any discretionary act enumerated in this Agreement or any other Transaction Document Custodian shall have no responsibilities not be construed as a duty.
(r) The rights, privileges, protections, indemnities, immunities and benefits afforded to the Collateral Agent under this Agreement are extended to, and shall be enforceable by (i) the Collateral Agent in each document related hereto to which it is a party or duties otherwise subject, whether or not specifically set forth therein, and (ii) the entity serving as the Collateral Agent in each of its capacities hereunder and under any related document and each agent, custodian and other Person employed to act by the Collateral Agent hereunder and under any related document, whether or not specifically set forth herein or in any related document, as the case may be, together with respect such other rights, privileges, protections, indemnities, immunities and benefits afforded to the applicable party hereunder or under any Related Contract while related document.
(s) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Agent in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower hereby agrees that it shall provide the Collateral Agent with such Related Contract is information as it may request including, but not in its possessionlimited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify the Borrower’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 2 contracts
Sources: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementtelegram, request, waiver, consent, report, letter electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or, prior to the occurrence of an Event of Default or Investment Manager Termination Event, the Investment Manager or (b) the verbal instructions of the Administrative Agent or, prior to the occurrence of an Event of Default or Investment Manager Termination Event, the Investment Manager.
(b) The Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except bad faith or grossly negligent performance or omission of its duties. Under no circumstances will the Collateral Custodian be liable for its indirect, punitive, special, consequential or their own gross negligence incidental damages, such as loss of use, revenue or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)profit.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document . The Collateral Custodian is shall not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as be obligated to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking take any action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has received instructions from such Personsbeen furnished with an indemnity reasonably satisfactory to it. For avoidance of doubt, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities obligation to prepare, file or duties with respect maintain any UCC financing statements related to any Related Contract while such Related Contract is Collateral. The Collateral Custodian shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation (other than a statement, warranty or representation made by the Collateral Custodian) made in its possessionor in connection with this Agreement or any other Transaction Document, (ii) the contents of any certificate, report or other document (except to the extent prepared by the Collateral Custodian) delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions (except as the same are required to be performed or observed by the Collateral Custodian) set forth herein or therein or the occurrence of any Default, or (iv) the due execution, legality, validity, enforceability, effectiveness or genuineness (except the same relates to the Collateral Custodian) of this Agreement, any other Transaction Document, any Collateral or any other agreement, instrument or document.
Appears in 2 contracts
Sources: Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund), Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or, prior to the occurrence of an Event of Default, the Collateral Manager or (b) the verbal instructions of the Administrative Agent or or, prior to the occurrence of an Event of Default, the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or Manager.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments or Required Loan Documents. Under no circumstances will the Collateral Custodian be liable for its indirect, special, punitive, consequential or their own gross negligence incidental damages, such as loss of use, revenue or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)profit.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged . The Collateral Custodian shall not be obligated to take any legal action hereunder that the Document Custodian is not guaranteeing performance of might in its judgment be contrary to Applicable Law or assuming involve any expense or liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Loan and Security Agreement (KKR FS Income Trust), Loan and Security Agreement (KKR FS Income Trust)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written (including electronic) instructions of any designated officer of the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or duties similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(k) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(l) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Agent in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower hereby agrees that it shall provide the Collateral Agent with such Related Contract is information as it may reasonably request including, but not in its possessionlimited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify the identities of the Borrower such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or Neither the Collateral AgentAgent nor Financial Security, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its their respective directors, officersofficers or employees, agents, or employees shall be liable for any error of judgment, to Pledgor or to the Pledged Entity for any action taken or omitted to be taken by it or them as Document Custodian under hereunder, or in connection with this Agreementherewith, except that the Collateral Agent and Financial Security shall each be liable for its own negligence, bad faith or their own gross willful misconduct.
(b) The Collateral Agent shall incur no liability to Financial Security except for the Collateral Agent's negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)carrying out its duties hereunder.
(c) The Document Custodian makes no warranty or representation Collateral Agent shall be protected and shall incur no liability to any party in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document the Collateral Agent reasonably believes to be genuine and to have no responsibility been duly executed by the appropriate signatory, and (except as expressly set forth in this Agreement) as absent actual knowledge to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, contrary) the Collateral Loans or any other Collateral, and will Agent shall not be required to and will not make any representations as independent investigation with respect thereto. The Collateral Agent shall at all times be free independently to establish to its reasonable satisfaction, but shall have no duty to independently verify, the existence or nonexistence of facts that are a condition to the validity exercise or value enforcement of any of the Collateralright or remedy hereunder.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders)may consult with qualified counsel, financial advisors or accountants and shall not be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost liable for any action taken pursuant or omitted to be taken by it hereunder in good faith and in compliance accordance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood written advice of such loss counsel, financial advisors or damage and regardless of the form of actionaccountants.
(e) The Document Custodian Collateral Agent shall not be under any obligation to exercise any of the remedial rights or powers vested in it by this Pledge Agreement unless it shall have no responsibilities received reasonable security or duties with respect indemnity satisfactory to any Related Contract while such Related Contract is not in its possessionthe Collateral Agent against the reasonable costs, expenses and liabilities which it might incur.
Appears in 2 contracts
Sources: Stock Pledge Agreement (Advantica Restaurant Group Inc), Stock Pledge Agreement (Advantica Restaurant Group Inc)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter letter, resolution, direction, order, bond, debenture, note or other evidence of indebtedness or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein. The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt receipt, direction, bond, debenture, note or other paper evidence of indebtedness or other paper, electronic communication or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Collateral Custodian as a result of the Document Collateral Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Collateral Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, any mistakes of fact or law, or for any action taken or omitted to be taken by it or them as Document Collateral Custodian under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider Collateral Manager and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority LendersControlling Parties), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Collateral Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Credit Agreement (Golub Capital Private Credit Fund), Credit Agreement (Golub Capital Private Credit Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and during the continuance of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, recalculation to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties with respect data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) In no event shall the Collateral Custodian be liable for any Related Contract while such Related Contract is failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not in its possessionlimited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect of the Collateral Custodian under this Agreement. In the event the Collateral Custodian is also the Collateral Agent, the Collateral Custodian is entitled to any Related Contract while such Related Contract is not in its possessionall of the rights, protections and benefits of the Collateral Agent.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the oral instructions of the Administrative Agent or the Collateral Agent. The Document Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Custodian receives written notice of such matter. Notice or knowledge of any matter by W▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publicly available information shall not constitute notice or actual knowledge of the Collateral Custodian.
(b) The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to the Collateral.
(h) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunderhereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Document Custodian mayAdministrative Agent, prior to the occurrence of an Event of Default, request instructions from the Borrower and/or any related bank agent, Obligor or the Services Provider similar party, and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf Custodian shall have no responsibility for the accuracy of the Majority Lenders), any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking any action unless update its records (as it has received instructions from may deem necessary or appropriate) based on such Persons, as applicable. The Document Custodian shall in all events have no liability, risk information or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. data.
(i) In no event shall the Document Collateral Custodian be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ej) The Document In no event shall the Collateral Custodian shall have no responsibilities be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations), strikes, lockouts, loss or malfunction of utilities, computer (hardware or software) or communications services, terrorism, labor disputes, disease, epidemic, pandemic, quarantine, national emergency, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (NMF SLF I, Inc.), Loan and Security Agreement (NMF SLF I, Inc.)
Limitation on Liability. (a1) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(2) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b3) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Asset Documents.
(c4) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(d5) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(6) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(7) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Custodian Each of the protections, reliances, indemnities and immunities offered to the Collateral Agent under ARTICLE X shall have no responsibilities or duties with respect be afforded to any Related Contract while such Related Contract is not in its possessionthe Collateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Diameter Credit Co), Loan and Servicing Agreement (Diameter Credit Co)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Administrative Agent or (ii) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionPortfolio.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Senior Capital Ltd.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been presented, signed or sent by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct, bad faith, fraud or grossly negligent performance or omission of its duties.
(d) The Collateral Custodian makes no warranty or representation, shall not be taken by it responsible for any statements, warranties or them as Document Custodian under representations made in or in connection with this AgreementAgreement by any other party hereto, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, perfection, priority, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder or under another Transaction Document.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to except during the occurrence continuance of an Event of DefaultDefault or after the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after during the occurrence continuance of an Event of DefaultDefault or after the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent Agent, the Servicer or the Collateral AgentBorrower. In no event shall the Document Collateral Custodian be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) In no event shall the Collateral Custodian be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(j) The Document Collateral Custodian shall have no responsibilities responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or duties with respect re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any Related Contract while security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such Related Contract is not in its possessionlien or security interest.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (First Eagle Private Credit Fund), Loan and Servicing Agreement (First Eagle Private Credit Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementresolution, report, request, waiverdirection, consent, reportorder, letter bond, debenture, note or other evidence of indebtedness or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Administrative Agent or (ii) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith, except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation (except as expressly set forth in this Agreement) and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralLoan Asset File, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralPortfolio Assets. The Collateral Custodian shall not be obligated to take any action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to a Portfolio Asset.
(h) Subject in all cases to Section 9.02(c), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider Portfolio Asset Servicer and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent Majority Lenders or the Collateral Agent (each on behalf of the Majority Lenders)Calculation Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Borrower, the Portfolio Asset Servicer, the Majority Lenders or the Calculation Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent Borrower, Portfolio Asset Servicer, the Majority Lenders or the Collateral Calculation Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) In no event shall the Collateral Custodian be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; it being understood that the Collateral Custodian shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstance..
(j) The Document Collateral Custodian shall have no responsibilities responsibility and shall have no liability for (i) giving, executing, delivering, authorizing, preparing, recording, filing, re-recording or duties with respect re-filing any financing statement, continuation statement, document, instrument or other notice, agreement, consent or other papers in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, agreement, consent or other papers, (iii) taking any action to perfect or maintain the perfection of any Related Contract while security interest granted to it hereunder or otherwise or (iv) the validity, legality, enforceability or perfection or priority of any such Related Contract lien or security interest.
(k) It is expressly agreed and acknowledged that the Collateral Custodian is not guaranteeing or overseeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to a Loan Asset.
(l) The Collateral Custodian shall be under no obligation to make any investigation into the facts or matters stated in any resolution, exhibit, request, representation, opinion, certificate, statement, acknowledgement, consent, order or document in the Loan Asset File or any other document or instrument other than as expressly provided for herein.
(m) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its possessionvarious duties hereunder shall be based upon, and in reliance upon, data, information and notice provided to it by the Borrower, the Portfolio Asset Servicer, the Calculation Agent and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Secured Lending III), Loan and Servicing Agreement (Carlyle Secured Lending III)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent receives written or email notice of such matter. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publically available information shall not constitute notice or actual knowledge of the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence Collateral.
(h) The Collateral Agent may execute any of an Event of Defaultthe trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or that the Collateral Agent shall not be responsible for any fraud, willful misconduct or gross negligence on the part of any non-Affiliated agent or attorney appointed with due care by it hereunder.
(each on behalf i) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(j) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the Majority Lenders)matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled at all times to refrain from taking any action unless update its records (as it has received instructions from such Persons, as applicable. may deem necessary or appropriate).
(k) The Document Custodian shall parties acknowledges that in all events have no liability, risk or cost for any action taken pursuant to and in compliance accordance with the instruction Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Agent in order to help fight the funding of the Administrative Agent terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. In no event Each Borrower hereby agrees that it shall provide the Document Custodian be liable for punitiveCollateral Agent with such information as it may request including, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to lost profits)identify and verify the Borrower’s identity (and in certain circumstances, even if the Document Custodian has been advised beneficial owners thereof) such as organizational documents, certificate of the likelihood of such loss good standing, license to do business, or damage and regardless of the form of actionother pertinent identifying information.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Limitation on Liability. (a) The Document Custodian may conclusively rely on Intermediary shall not have any duties or obligations except those expressly set forth herein and shall be fully protected in acting upon any certificatesatisfy those duties expressly set forth herein. Without limiting the generality of the foregoing, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian Intermediary shall not be bound subject to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt fiduciary or other paper implied duties, and the Intermediary shall not have any duty to take any discretionary action or documentexercise any discretionary powers. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions None of the Administrative Agent Intermediary, any Affiliate of the Intermediary, or any officer, agent, stockholder, partner, member, director or employee of the Collateral Agent, as applicable, and no party Intermediary or any of their Affiliates shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting liability, whether direct or indirect and whether in contract, tort or otherwise (where so instructedi) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or any of them as Document Custodian under hereunder or in connection with this Agreement, except for its herewith unless there has been a final judicial determination by a court of competent jurisdiction beyond all applicable appeals that such act or their own omission was performed or omitted in bad faith or constituted gross negligence or willful misconduct or reckless disregard of such party’s duties or obligations or (each as determined ii) for any action taken or omitted to be taken by the Intermediary in a finalgood faith at the express direction of the Issuer or the Collateral Trustee. In addition, non-appealable judgment by a court the Intermediary shall not be responsible or have any liability for making any investment or reinvestment of competent jurisdiction).
(c) any cash balance in the Accounts pursuant to the terms of this Agreement and the Indenture. The Document Custodian makes no warranty or representation and liabilities of the Intermediary shall have no responsibility (except as be limited to those expressly set forth in this Agreement. With the exception of (x) as to this Agreement, (y) relevant terms used herein and expressly defined in the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability Indenture and (z) the provisions of the Related ContractsIndenture expressly referred to herein, the Collateral Loans Intermediary is not responsible for or any other Collateral, and will not be required to and will not make any representations as to the validity or value chargeable with knowledge of any of the Collateralterms or conditions contained in any agreement referred to herein.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Indenture and Security Agreement (Ares Strategic Income Fund), Indenture and Security Agreement (Ares Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementtelegram, requestelectronic communication, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or, prior to the occurrence and continuance of an Event of Default or Collateral Manager Termination Event, the Collateral Manager or (b) the verbal instructions of the Administrative Agent or, prior to the occurrence and continuance of an Event of Default or Collateral Manager Termination Event, the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or Manager.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments. Under no circumstances will the Collateral Custodian be liable for its indirect, special, consequential, punitive, or their own gross negligence incidental damages, such as loss of use, revenue or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)profit.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral.
(h) The Collateral Custodian may assume the genuineness of any such Required Loan Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Loan Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral to be held by the Collateral Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to be issued or made available in respect of any Collateral or to compel or cause delivery thereof to the Collateral Custodian. Without prejudice to the generality of the foregoing, the Collateral Custodian shall be without liability to the Borrower, the Collateral Manager, the Administrative Agent or any other Person for any damage or loss resulting from or caused by events or circumstances beyond the Collateral Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, natural disasters of any kind, or other similar events or acts (it being understood that the Collateral Custodian shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances); errors by the Borrower, the Collateral Manager or the Administrative Agent (including any Responsible Officer of any thereof) in its instructions to the Collateral Custodian; or changes in applicable law, regulation or orders.
(i) In the event that (i) the Borrower, the Collateral Manager, the Administrative Agent, Lenders, or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Loan Documentor Required Loan Document or (ii) a third party shall institute any court proceeding by which any Required Loan Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Required Loan Documents that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Required Loan Documents as directed by the Administrative Agent, which shall give a direction consistent with such determination. Reasonable and documented out-of-pocket expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(j) In case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to in the occurrence absence of a continuing of an Event of DefaultDefault or the occurrence of the Termination Date, request instructions from the Borrower or Collateral Manager and during the Services Provider and may, after the occurrence existence of an Event of DefaultDefault or following the occurrence of the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent.
(k) Without limiting the generality of any terms of this section, the Collateral Custodian shall have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Administrative Agent, any agent or the Borrower to provide accurate and complete information on a timely basis to the Collateral Custodian, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Custodian’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(l) The Collateral Custodian shall not be deemed to have knowledge or notice of any matter unless actually known to a Responsible Officer of the Collateral Custodian.
(m) The Collateral Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder with respect to any foreign exchange transaction, either directly or, by or through agents or attorneys, and the Collateral Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it. Neither the Collateral Custodian nor any of its affiliates, directors, officers, shareholders, agents or employees will be liable to the Collateral Manager, the Borrower or any other Person, except by reason of acts or omissions by the Collateral Custodian constituting bad faith, willful misconduct, gross negligence or reckless disregard of the Collateral Custodian’s duties hereunder. The Collateral Custodian shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the Administrative Agent, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Administrative Agent, or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Custodian’s own bad faith, willful misconduct, gross negligence or reckless disregard of its duties hereunder.
(n) It is understood and agreed that any foreign exchange transaction effected by the Collateral Custodian acting at the direction of the Administrative Agent, the Borrower or the Collateral Manager may be entered with U.S. Bank Trust Company, National Association or its Affiliates acting as principal or otherwise through customary banking channels. The Collateral Custodian shall be entitled at all times to comply with any legal or regulatory requirements applicable to currency or foreign exchange transactions. Each party hereto acknowledges that the Collateral Custodian or any Affiliates of the Collateral Custodian involved in any such foreign exchange transactions may make a margin or banking income from foreign exchange transactions entered into pursuant to this section for which they shall not be required to account to the Borrower, the Administrative Agent or the Collateral AgentManager. In no event shall All risk and expense incident to such conversion is the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised responsibility of the likelihood of such loss Borrower, the Administrative Agent or damage and regardless of the form of action.
(e) Collateral Manager. The Document Collateral Custodian shall have no responsibilities (x) responsibility for fluctuations in exchange rates affecting any collections or conversion thereof and (y) to the extent it complies with the instructions provided by the respective party, liability for any losses incurred or resulting from the rates obtained in such foreign exchange transactions.
(o) The Collateral Custodian shall have no obligation to supervise, verify, monitor or administer the performance of the Collateral Manager or the Borrower and shall have no liability for any action taken or omitted by the Collateral Manager (including any successor to the Collateral Manager) or the Borrower. The Collateral Custodian may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Collateral Custodian will not be liable for any acts or omissions of any such agents, attorneys or custodians appointed by it with respect due care. Neither the Collateral Custodian nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them.
(p) For the avoidance of doubt, the Collateral Custodian shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of Daily Simple SOFR (or other Benchmark), or whether or when there has occurred, or to give notice to any Related Contract while other transaction party of the occurrence of, any Benchmark Transition Event or Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such Related Contract a rate have been satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing. Neither the Collateral Custodian nor the Document Custodian shall be liable (other than in connection with any action or omission on the part of the Collateral Custodian or Document Custodian, as applicable, constituting gross negligence, bad faith, willful misconduct, or reckless disregard of its obligations under the Transaction Documents to which it is not a party) for any inability, failure or delay on its part to perform any of their respective duties set forth in its possessionthis Agreement or the other Transaction Documents as a result of the unavailability of Daily Simple SOFR (or other applicable Benchmark) and absence of a designated Benchmark Replacement, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and the other Transaction Documents, and reasonably required for the performance of such duties.
Appears in 2 contracts
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Administrator may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Administrator may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. [FS Investment] Loan and Security Agreement
(b) The Document Custodian Collateral Administrator may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Administrator shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, or their own gross negligence grossly negligent performance or willful misconduct (each as determined in a final, non-appealable judgment by a court omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Administrator makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Administrator shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Administrator shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and the Collateral Administration Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Administrator.
(f) The Collateral Administrator shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Administrator is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Documentparties to the Collateral.
(h) The Collateral Administrator shall have no obligation to supervise, verify, monitor or administer the performance of the Collateral Manager or the Borrower and shall have no liability for any action taken or omitted by the Collateral Manager (including any successor to the Collateral Manager or the Borrower. In case The Collateral Administrator may act through its agents, attorneys and custodians in performing any reasonable question arises as to of its duties hereunderand obligations under this Agreement, it being understood by the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or parties hereto that the Collateral Agent (each Administrator will be liable for any acts or omissions of any such agents, attorneys or custodians acting for and on behalf of the Majority Lenders)Collateral Administrator. Neither the Collateral Administrator nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement. [FS Investment] Loan and Security Agreement
(i) In addition to those set forth herein, the Collateral Administrator shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction each of the Administrative Agent or rights, protections, immunities and indemnities set forth in the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionAdministration Agreement.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Loan and Security Agreement (FS KKR Capital Corp), Loan and Security Agreement (FS Investment Corp IV)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document In no event shall the Collateral Custodian shall have no responsibilities be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Limitation on Liability. (ai) The Document Except for its willful misconduct or gross negligence, the Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Until the Custodian receives written notice from the Pledgee that a Remedy Event has occurred and is continuing, the Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon follow the written instructions of the Administrative Agent Borrower (or the Collateral AgentManager acting on its behalf) with respect to the Custodial Property. After the Custodian receives written notice from the Pledgee (with a copy to MCG) that a Remedy Event has occurred and is continuing, as applicable, and no party the Custodian shall have any right of action whatsoever against exclusively follow the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the written instructions of the Administrative Agent or Pledgee with respect to the Collateral Agent. Custodial Property (except for any instructions that MCG is authorized to give pursuant to the last sentence of Paragraph 7G).
(ii) The Document Custodian may with consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it the Custodian hereunder in good faith and in accordance with the advice or opinion of such counsel.
(biii) Neither the Document The Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except (a) in the case of its willful misconduct or grossly negligent performance or omission of its duties, (b) in the case of its negligent performance of its duties in taking and retaining custody of the Collateral Documents or (c) the failure of the Custodian to take any action requested to be taken by it or them as Document Custodian under or at the express direction of the Pledgee in connection accordance with an express provision of this Pledge Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(civ) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Pledge Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Pledge Agreement) of any of the Collateral. The Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(dv) The Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Pledge Agreement, and no covenants or obligations shall be implied in this Pledge Agreement against the Custodian.
(vi) The Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder (except for funds expended in the administration in the ordinary course of its duties hereunder).
(vii) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionObligor.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Pledge, Security and Custody Agreement (MCG Capital Corp), Pledge, Security and Custody Agreement (MCG Capital Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Collateral Custodian as a result of the Document Collateral Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Collateral Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Collateral Custodian under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related ContractsRequired Loan Documents, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Required Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Required Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Collateral Custodian shall have no responsibilities or duties with respect to any Related Contract Required Loan Document while such Related Contract Required Loan Document is not in its possession.
Appears in 2 contracts
Sources: Loan and Security Agreement (Blue Owl Credit Income Corp.), Loan and Security Agreement (Owl Rock Core Income Corp.)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Facility Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Facility Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Facility Agent or the Collateral Agent (each on behalf of the Majority LendersControlling Parties), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Facility Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Credit Agreement (Blue Owl Credit Income Corp.), Credit Agreement (Blue Owl Credit Income Corp.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any notice, instructions, statement, consent, certificate, instrument, opinion, notice, instructionletter, statementtelegram, request, waiver, consent, report, letter electronic communication or other document delivered or sent to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of any designated officer of the Administrative Agent or Agent, the Collateral Agent, the Servicer or the Borrower, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or .
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Collateral Custodian nor any of its directors, officers, agents, directors or employees shall be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it such Person, in good faith, or them as Document Custodian under for any mistakes of fact or law, or for anything that such Person may do or refrain from doing in connection with this Agreement, herewith except for its or their own gross negligence or in the case of such Person’s willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)such Person’s duties hereunder.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. Any permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) No provision of this Agreement shall require the Collateral Custodian to expend or risk its own funds, or to take any action (or forbear from action) hereunder which might in its judgment involve any expense or any financial or other liability unless it shall be furnished with acceptable indemnification. Nothing herein shall obligate the Collateral Custodian to commence, prosecute or defend legal proceedings in any instance, whether on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or relating to this Agreement or the services contemplated hereby.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(b)(vi), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence and continuation of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and during the continuance of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent Agent, the Servicer, the Borrower or the Collateral Agentany other party entitled to instruct it. In no event shall the Document Collateral Custodian be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document; provided that if the form thereof is specifically prescribed in any way by the terms of this Agreement, the Collateral Custodian shall examine the same to determine whether it substantially conforms on its face to such requirements hereof. It is expressly acknowledged by the Borrower, the Servicer, the Lenders and the Administrative Agent that performance by the Collateral Custodian of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral Portfolio, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Custodian to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral Portfolio is in default or in compliance with the underlying documents governing or securing such item of Collateral Portfolio, from time to time. The Collateral Custodian shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete in-formation on a timely basis to the Collateral Custodian or otherwise on the part of any such par-ty to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Custodian’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(j) In acting hereunder and under any other Transaction Document, the Securities Intermediary shall be entitled to the same protections, rights, immunities and indemnities as are afforded the Collateral Custodian; provided that such protections, rights, immunities and indemnities shall be in addition to, and not in limitation of, any protections, rights, immunities and indemnities provided in any other Transaction Document. In respect of its duties and obligations pursuant to this Article XII, the Collateral Administrator shall be entitled to the same protections, rights, immunities and indemnities as are afforded the Collateral Custodian.
(k) In no event shall the Collateral Custodian be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations), natural disaster, civil unrest, accidents, labor disputes, disease, epidemic or pandemic, quarantine, national emergency, loss or malfunction of utilities or computer software or hardware, communications system failure, malware or ransomware, unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer systems, or unavailability of any securities clearing system or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(l) The Collateral Custodian shall have no responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(m) The Collateral Custodian (in each of its capacities) shall be entitled to accept and act upon instructions or directions pursuant to this Agreement and other Transaction Documents sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided, however, that each party providing such instructions or directions shall provide to the Collateral Custodian an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such party elects to give the Collateral Custodian email or facsimile instructions (or instructions by a similar electronic method) and the Collateral Custodian in its discretion elects to act upon such instructions, the Collateral Custodian’s reasonable understanding of such instructions shall be deemed to be controlling. The Collateral Custodian shall not be liable for any losses, costs or expenses arising directly or indirectly from the Collateral Custodian’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Each party hereto agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Collateral Custodian, including without limitation the risk of the Collateral Custodian acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any party providing such instructions acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(n) The Collateral Custodian shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of Term SOFR or any Benchmark (or other applicable alternative reference rate or Benchmark Replacement), or whether or when there has occurred, or to give notice to any Related Contract while other transaction party of the occurrence of, any Benchmark Replacement Date, Benchmark Unavailability Period or Benchmark Transition Event, (ii) to select, determine or designate any Benchmark Replacement, alternative reference rate, or other successor or replacement benchmark index, or whether any conditions to the designation of such Related Contract a rate have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment or other modifier to any replacement or successor index, or (iv) to determine whether or what Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing. The Collateral Custodian shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Agreement or other Transaction Documents as a result of the unavailability of Term SOFR or any Benchmark (or other applicable alternative reference rate or Benchmark Replacement) and absence of a designated replacement Benchmark, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement or other Transaction Document and reasonably required for the performance of such duties. In connection with each Advance, the Administrative Agent is responsible in each instance to (i) monitor the status of Term SOFR or other applicable benchmark, (ii) determine whether a substitute index should or could be selected in accordance with this Agreement, (iii) determine the selection of any such substitute index in accordance with this Agreement, and (iv) exercise any right related to the foregoing on behalf of the Administrative Agent or any other Person in accordance with this Agreement, and the Collateral Custodian shall not have any responsibility or liability therefor. In connection with each floating rate Loan Asset, the Collateral Custodian shall have no responsibility or liability for any (i) monitoring the status of Term SOFR or other applicable Benchmark, (ii) determining whether a substitute index should or could be selected, (iii) determining the selection of any such substitute index, or (iv) exercising any right related to the foregoing on behalf of the Borrower or any other Person.
(o) The Collateral Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Collateral Custodian shall not be liable or responsible for the actions, omissions, negligence or misconduct of any such agent or attorney selected by it with due care except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Collateral Custodian acted with gross negligence or willful misconduct in the selection of such agent or attorney in fact.
(p) The Collateral Custodian shall not be liable for the actions or omissions of any other Person (including concerning the application of funds), or under any duty to monitor or investigate compliance on the part of any other Person with the terms or requirements of this Agreement or any other Transaction Document, or their duties hereunder or thereunder.
(q) If at any time the Collateral Custodian is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), the Collateral Custodian is authorized to comply therewith in any manner as it or its possessionlegal counsel of its own choosing deems appropriate, and if the Collateral Custodian complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Collateral Custodian shall not be liable to any of the parties hereto or to any other person even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(r) Neither the Collateral Custodian nor any of its directors, officers, employees, agents or affiliates shall have any duty to monitor, ascertain, or investigate as to the performance or observance of any of the terms, covenants or conditions of this Agreement or other Transaction Document or any notice, consent, certificate, instruction or waiver, report, statement, opinion, direction or other instrument or writing on the part of the Borrower, the Servicer or any other Person or to inspect the property (including the books and records) of the Borrower or the Servicer.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Limitation on Liability. (ai) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(ii) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(biii) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its Payment Duties or Transfer Duties and in the case of its negligent performance of its duties in taking and retaining custody of the Required Asset Documents.
(civ) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(dv) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(vi) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(vii) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or, prior to the occurrence of an Event of Default or Investment Manager Termination Event, the Investment Manager or (b) the verbal instructions of the Administrative Agent or, prior to the occurrence of an Event of Default or Investment Manager Termination Event, the Investment Manager.
(b) The Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments. Under no circumstances will the Collateral Custodian be liable for its indirect, punitive, special, consequential or their own gross negligence incidental damages, such as loss of use, revenue or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)profit.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged . The Collateral Custodian shall not be obligated to take any legal action hereunder that the Document Custodian is not guaranteeing performance of might in its judgment be contrary to Applicable Law or assuming involve any expense or liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 2 contracts
Sources: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.), Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for its bad faith or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)negligence.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence and continuance of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and continuance of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties with respect delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations), natural disaster, civil unrest, accidents, labor disputes, disease, epidemic or pandemic, quarantine, national emergency, loss or malfunction of utilities or computer software or hardware, communications system failure, malware or ransomware, unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer systems, or unavailability of any securities clearing system or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
(k) The Collateral Agent shall have no responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any Related Contract while security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such Related Contract is not in its possessionlien or security interest.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for its bad faith or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)negligence.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (AMG Comvest Senior Lending Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statementelectronic transmission, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent Lead Lender or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting Manager or (where so instructedb) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent Lead Lender or the Collateral Agent. Manager.
(b) The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. The Document Custodian may perform any and all its duties and exercise its rights and powers by or through any one or more agents or sub-agents appointed by it; provided that the Document Custodian shall not be responsible for the actions or omissions of any agent or sub-agent appointed with due care hereunder, to the extent such agent or sub-agent is not an Affiliate of the Document Custodian.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, agents or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under or in connection with this AgreementAgreement or any of the other Transaction Documents, except for its or their own gross negligence or willful misconduct (each misconduct, as determined in a final, non-appealable judgment by a court of competent jurisdiction)jurisdiction in a final and non-appealable judgment. The Document Custodian shall not be liable for any error of judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related ContractsCollateral, the Collateral Loans this Agreement or any other CollateralTransaction Document, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral, this Agreement or any other Transaction Document. The Document Custodian shall not be obligated to take any action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Document Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement or any other Transaction Document against the Document Custodian.
(f) The Document Custodian shall not be required to advance, expend or risk its own funds, or otherwise incur any financial or other liability or expense in the performance of any of its duties hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk, expense or liability is not reasonably assured to it.
(g) It is expressly agreed and acknowledged that the Document Custodian is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or to any other Loan Document. Transaction Document or any parties to the Collateral or related documents.
(h) In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Borrower or the Services Provider Collateral Manager and may, after the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Lead Lender, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Lead Lender, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent Collateral Manager or the Collateral AgentLead Lender. In no event shall the Document Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Custodian shall not be liable for the acts or omissions of the Collateral Agent, the Loan Agent, the Collateral Manager, the Borrower, the Lead Lender or any other Person under this Agreement or any other Transaction Document and shall not be required to monitor the performance of any such Person. Notwithstanding anything herein to the contrary, the Document Custodian shall have no duty to perform any of the duties of any such Person under this Agreement or any other Transaction Document.
(j) It is expressly acknowledged by the parties hereto that application and performance by the Document Custodian of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Lead Lender, the Borrower and/or any related bank agent, obligor or similar party, and the Document Custodian shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(k) In no event shall the Document Custodian be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including but not limited to acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, disease, government action (including any laws, ordinances, regulations, whether or not of the same class or kind as specified above), that delay, restrict or prohibit the providing of services by the Document Custodian as contemplated by this Agreement.
(l) [Reserved].
(m) The Document Custodian shall have no responsibilities responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(n) The Collateral Manager and the Lead Lender shall reasonably cooperate with the Document Custodian in connection with the performance of its duties hereunder and under any Transaction Document, including providing it with such information or documentation as it may reasonably request for purposes of any calculation to be made by it.
(o) The Document Custodian shall not be bound to make any investigation into (i) the occurrence of any default, or the validity, enforceability, effectiveness or genuineness of this Agreement, any Transaction Document or any other agreement, instrument or document, (ii) the creation, perfection or priority of any lien purported to be created by this Agreement or any other Transaction Document or (iii) the satisfaction of any condition set forth in this Agreement or any Transaction Document.
(p) The Document Custodian shall not have any duty or responsibility in respect of (i) the acquisition or maintenance of any insurance or (ii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral or any other assets of the Borrower or any other Person.
(q) The Document Custodian shall not be liable for failing to comply with its obligations under this Agreement or any Transaction Document in so far as the performance of such obligations is dependent upon the timely receipt of instructions and/or other information from any other person which are not received or not received by the time required.
(r) Nothing herein shall be construed to impose an obligation on the part of the Document Custodian to recalculate, evaluate, verify or independently determine the accuracy of any report, certificate or other information received from the Borrower, the Collateral Manager, the Lead Lender or any other Person.
(s) In no event shall the Document Custodian be liable for the selection of any investments or any losses in connection therewith, or for any failure of the relevant party to timely provide investment instruction in connection with the investment of funds in or from any account set forth herein.
(t) Notwithstanding anything contained in this Agreement or any other Transaction Document to the contrary, the Document Custodian shall be under no obligation (i) to monitor, determine, or verify any Benchmark Rate, Reference Rate, Term SOFR or other applicable benchmark interest rate, or to monitor, determine, calculate or verify the unavailability or cessation of any Benchmark Rate, Reference Rate, Term SOFR or other applicable benchmark interest rate whether or when there has occurred, or to give notice to any Related Contract while other Person of the occurrence of, any date on which such Related Contract rate may be required to be transitioned or replaced in accordance with the terms of the Transaction Documents, applicable law or otherwise, (ii) to select, determine or designate any replacement to such rate, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, (iii) to select, determine or designate any modifier to any replacement or successor index, or (iv) to determine whether or what any amendments to this Agreement or the other Transaction Documents are necessary or advisable, if any, in connection with any of the foregoing.
(u) The rights, privileges, protections, indemnities, immunities and benefits afforded to the Document Custodian under this Agreement are extended to, and shall be enforceable by (i) it in each Transaction Document to which it is a party or otherwise subject, whether or not specifically set forth therein, and (ii) the entity serving as the Document Custodian and its Affiliates in its possessiontheir respective capacities as Loan Agent, Securities Intermediary and Collateral Agent hereunder and under any other Transaction Document and each agent, custodian and other Person employed to act by the Document Custodian hereunder and under any Transaction Document, whether or not specifically set forth herein or in any Transaction Document, as the case may be, together with such other rights, privileges, protections, indemnities, immunities and benefits afforded to the applicable party hereunder or under any related document.
Appears in 1 contract
Sources: Facility Agreement (AB Private Credit Investors Corp)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed or delivered by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Controlling Lender.
(b) The Collateral Agent. The Document Custodian Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgmentjudgment or act done or step taken or omitted by it, in good faith, or for any action taken mistakes of fact or omitted to be taken by law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times obligated to refrain from taking take any legal action hereunder that might in its judgment involve any expense or liability unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 1 contract
Sources: Loan and Security Agreement (Oaktree Strategic Income II, Inc.)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or Neither the Collateral AgentAgent nor Financial Security, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its their respective directors, officersofficers or employees, agents, or employees shall be liable for to the Pledgor or to any error of judgment, or Pledged Entity for any action taken or omitted to be taken by it or them as Document Custodian under hereunder, or in connection with this Agreementherewith, except that the Collateral Agent and Financial Security shall each be liable for its or their own gross negligence, bad faith or willful misconduct.
(b) The Collateral Agent shall incur no liability to Financial Security except for the Collateral Agent's negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)carrying out its duties hereunder.
(c) The Document Custodian makes no warranty or representation Collateral Agent shall be protected and shall incur no liability to any party in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document the Collateral Agent reasonably believes to be genuine and to have no responsibility been duly executed by the appropriate signatory, and (except as expressly set forth in this Agreement) as absent actual knowledge to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, contrary) the Collateral Loans or any other Collateral, and will Agent shall not be required to and will not make any representations as independent investigation with respect thereto. The Collateral Agent shall at all times be free independently to establish to its reasonable satisfaction, but shall have no duty to independently verify, the existence or nonexistence of facts that are a condition to the validity exercise or value enforcement of any of the Collateralright or remedy hereunder.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders)may consult with qualified counsel, financial advisors or accountants and shall not be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost liable for any action taken pursuant or omitted to be taken by it hereunder in good faith and in compliance accordance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood written advice of such loss counsel, financial advisors or damage and regardless of the form of actionaccountants.
(e) The Document Custodian Collateral Agent shall not be under any obligation to exercise any of the remedial rights or powers vested in it by this Pledge Agreement unless it shall have no responsibilities received reasonable security or duties with respect indemnity satisfactory to any Related Contract while such Related Contract is not in its possessionthe Collateral Agent against the costs, expenses and liabilities which it might incur.
Appears in 1 contract
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. .
(b) The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. The Document Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through agents or attorneys, and the Document Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it. Each of the protections, reliances, indemnities and immunities offered to the Collateral Agent in Article XII shall be afforded to the Document Custodian.
(bc) Neither the The Document Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its duties in taking and retaining custody of the Related Documents.
(cd) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Document Custodian shall not be obligated to take any action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Document Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Document Custodian.
(f) The Document Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as parties to its duties hereunderthe Collateral.
(h) Without prejudice to the generality of the foregoing, the Document Custodian may, prior shall be without liability to the occurrence of an Event of DefaultBorrower, request instructions from the Borrower or the Services Provider and mayCollateral Manager, after the occurrence of an Event of Default, request instructions from the Administrative Agent or any other Person for any failure or delay in the performance or its obligations hereunder because of, or for any damage or loss resulting from or caused by, events or circumstances beyond the Document Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral Manager, collateral Administrator or the Administrative Agent (each on behalf including any Authorized Person of any thereof) in its instructions to the Majority Lenders)Document Custodian; or changes in applicable law, and regulation or orders.
(i) In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator, the Collateral Manager, the Administrative Agent, Lenders or Document Custodian shall be entitled at served by a third party with any type of levy, attachment, writ or court order with respect to any Loan or Related Documents or (ii) a third party shall institute any court proceeding by which any Related Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all times to refrain from taking any action unless it has received instructions from court papers, orders, documents and other materials concerning such Persons, as applicableproceedings. The Document Custodian shall in shall, to the extent permitted by law, continue to hold and maintain all events have no liabilitythe Related Documents that are the subject of such proceedings pending a final, risk nonappealable order of a court of competent jurisdiction permitting or cost for any action taken pursuant to and in compliance with the instruction directing disposition thereof. Upon final determination of the Administrative Agent or the Collateral Agent. In no event shall such court, the Document Custodian be liable for punitiveshall dispose of such Related Documents as directed by the Collateral Agent or Administrative Agent, special, indirect or consequential loss or damage which shall give a direction consistent with such determination. Expenses of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood incurred as a result of such loss or damage and regardless of proceedings shall be borne by the form of actionBorrower.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificatecertificate (including an Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter facsimile or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral AgentManager. The Collateral Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be within the discretion or powers conferred upon it, as applicableor taken by it pursuant to any direction or instruction by which it is governed hereunder, and no party shall have any right of action whatsoever against the Document Custodian as a result or omitted to be taken by it by reason of the Document Custodian acting lack of direction or instruction required hereby for such action.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the The Collateral Agent (each on behalf of the Majority Lenders), and shall not be entitled at all times obligated to refrain from taking take any legal action hereunder that might in its judgment involve any expense or liability unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant been furnished with an indemnity reasonably satisfactory to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionit.
(e) The Document Custodian Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or duties obligations shall be implied in this Agreement against the Collateral Agent. Without limiting the generality of the foregoing, the Collateral Agent, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Collateral Manager or the Borrower, shall not be responsible for any action or omission of the Administrative Agent, the Lenders, the Collateral Manager, the Borrower or any Lender and, absent written notice to a Responsible Officer of the Collateral Agent, shall be entitled to assume that such person is in compliance with respect its obligations under this Agreement or any other document related to any Related Contract while such Related Contract is not in its possessionthis transaction.
Appears in 1 contract
Sources: Loan and Security Agreement (Nuveen Churchill Direct Lending Corp.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.. AmericasActive:18709990.5
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for its bad faith or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)negligence.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault (that has not been waived) or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties with respect to delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, AmericasActive:18709990.5 fire, riot, embargo, government action (including any Related Contract while such Related Contract is not in its possessionlaws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Collateral Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper paper, document or documentelectronic communication. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Administrative Agent or (ii) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith, except for in the case of its or their own gross negligence or willful misconduct (each or grossly negligent performance or omission of its duties as finally determined in by a final, final and non-appealable judgment by of a court of competent jurisdiction).
(cd) The Document Collateral Custodian makes no warranty or representation (except as expressly set forth in this Agreement) and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio Asset File, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralPortfolio Assets. The Collateral Custodian shall be entitled to rely upon and shall not incur any liability for relying upon any notice request, certificate, consent, statement, instrument, document or other writing reasonably believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. The duties, obligations and responsibilities of the Collateral Custodian shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Custodian. Any permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing or overseeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to a Portfolio Asset.
(h) The Collateral Custodian may assume the genuineness of any such Required Portfolio Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Portfolio Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral to be held by the Collateral Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to be issued or made available in respect of any Collateral or to compel or cause delivery thereof to the Collateral Custodian. Without prejudice to the generality of the foregoing, the Collateral Custodian shall be without liability to the Borrower, Portfolio Asset Servicer, the Administrative Agent or any other Loan Document. In Person for any damage or loss resulting from or caused by events or circumstances beyond the Collateral Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts.
(i) Subject in all cases to Section 9.02(c), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider Portfolio Asset Servicer and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or (acting at the Collateral Agent (each on behalf written direction of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Portfolio Asset Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent Portfolio Asset Servicer or the Collateral Administrative Agent, as applicable. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ej) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder shall be based upon, and in reliance upon, data, information and notice provided to it by the Administrative Agent, the Borrower, the Portfolio Asset Servicer and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(k) The Document Collateral Custodian shall have no responsibilities or duties with respect to any Related Contract Portfolio Asset Files and the Required Portfolio Documents while such Related Contract is Portfolio Asset Files and the Required Portfolio Documents are not in its possession.
(l) The Collateral Custodian may act or exercise its duties or powers hereunder either directly or, by or through its agents, employees or attorneys in fact, and the Collateral Custodian shall not be liable or responsible for the negligence or misconduct of any agent, employee or attorney in fact that it selects with reasonable care. Neither the Collateral Custodian nor any of its Affiliates, directors, officers, shareholders, agents or employees will be liable to the Portfolio Asset Servicer, Borrower or any other Person, except by reason of acts or omissions by the Collateral Custodian constituting gross negligence or willful misconduct of the Collateral Custodian’s duties hereunder. The Collateral Custodian shall in no event have any liability for the actions or omissions of the Borrower, the Portfolio Asset Servicer, the Administrative Agent, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Portfolio Asset Servicer, the Administrative Agent, or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Custodian’s own gross negligence or willful misconduct of its duties hereunder.
(m) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information that is required in order to comply with any applicable requirements of the Patriot Act.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) The Collateral Agent shall not be responsible or duties with respect liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(k) The Collateral Agent shall have no responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any Related Contract while security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such Related Contract lien or security interest.
(l) The Collateral Agent (in each of its capacities) shall be entitled to accept and act upon instructions or directions pursuant to this Agreement and other Transaction Documents sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided, however, that each party providing such instructions or directions shall provide to the Collateral Agent an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is not added or deleted from the listing. If such party elects to give the Collateral Agent email or facsimile instructions (or instructions by a similar electronic method) and the Collateral Agent in its possessiondiscretion elects to act upon such instructions, the Collateral Agent’s reasonable understanding of such instructions shall be deemed to be controlling. The Collateral Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Collateral Agent’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Each party hereto agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Collateral Agent, including without limitation the risk of the Collateral Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any party providing such instructions acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(m) Neither the Collateral Agent nor any of its directors, officers, employees, agents or affiliates shall have any duty to monitor, ascertain, or investigate as to the performance or observance of any of the terms, covenants or conditions of this Agreement or other Transaction Document or any notice, consent, certificate, instruction or waiver, report, statement, opinion, direction or other instrument or writing on the part of the Borrower, the Servicer or any other Person or to inspect the property (including the books and records) of the Borrower or the Servicer.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian Trustee nor any of its directors, officers, agents, agents or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under hereunder or in connection herewith, except that the Trustee shall be liable for its negligence (other than errors in judgment), bad faith or willful misconduct; nor shall the Trustee be responsible for the validity, effectiveness, value, sufficiency or enforceability against the Issuer of this Indenture or any of the Indenture Collateral (or any part thereof). Notwithstanding any term or provision of this Indenture, the Trustee shall incur no liability to the Issuer or the Secured Parties for any action taken or omitted by the Trustee in connection with this Agreementthe Indenture Collateral, except for its or their own gross the negligence or willful misconduct on the part of the Trustee and, further, shall incur no liability to the Secured Parties except for negligence (each as determined other than errors in a finaljudgment) or willful misconduct in carrying out its duties to the Secured Parties. Subject to Section 6.14, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation the Trustee shall be protected and shall incur no liability to any such party in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document reasonably believed by the Trustee to be genuine and to have no responsibility been duly executed by the appropriate signatory, and (except as expressly set forth in this Agreement) as absent actual knowledge to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of contrary) the Related Contracts, the Collateral Loans or any other Collateral, and will Trustee shall not be required to and will not make any representations as independent investigation with respect thereto. The Trustee shall at all times be free independently to establish to its reasonable satisfaction, but shall have no duty to independently verify, the existence or nonexistence of facts that are a condition to the validity exercise or value enforcement of any right or remedy hereunder or under any of the Related Documents. The Trustee may consult with counsel, and shall not be liable for any action taken or omitted to be taken by it hereunder in good faith and in accordance with the advice of such counsel selected by it with due care, which advice shall be confirmed in writing. The Trustee shall not be under any obligation to exercise any of the remedial rights or powers vested in it by this Indenture at the request or direction of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as Noteholders pursuant to its duties hereunder, the Document Custodian may, prior this Indenture unless such Noteholders shall have offered to the occurrence of an Event of DefaultTrustee reasonable security or indemnity against the costs, request instructions from the Borrower or the Services Provider expenses and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall liabilities which might be entitled at all times to refrain from taking any action unless incurred by it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent such request or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actiondirection.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 1 contract
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Facility Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Facility Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio or as to whether any of the Collateral Portfolio satisfies the definition of “Eligible Loan”. The Collateral Agent shall not be obligated to take any action hereunder that might in its reasonable judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence and continuation of an Event of DefaultDefault or the Termination Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence and continuation of an Event of DefaultDefault or the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Facility Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Facility Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Facility Agent or the Collateral AgentServicer. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Borrower, the Servicer, the Facility Agent or the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Borrower, the Servicer, the Facility Agent or the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent, in its role as Collateral Agent, shall have no responsibilities duty to perform any of the duties of the Borrower, the Servicer, the Facility Agent or the Collateral Custodian under this Agreement.
(j) The Collateral Agent shall in no event have any liability for the actions or omissions of the Facility Agent, the Servicer, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Facility Agent, the Servicer, or any other Person. The Collateral Agent shall not be liable for failing to perform or delay in performing its specified duties hereunder which result from or is caused by a failure or delay on the part of the Facility Agent, the Servicer, or any other Person in furnishing necessary, timely and accurate information to the Collateral Agent.
(k) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Facility Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of any Portfolio Asset is in default or in compliance with respect the underlying documents governing or securing such securities, from time to time. For purposes of monitoring changes in ratings, the Collateral Agent shall be entitled to use and rely (in good faith) exclusive upon a single reputable electronic financial information repository service (which for ratings by S&P shall be w▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or w▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and shall have no liability for any Related Contract while inaccuracies in the information reported by, or other errors or omissions of, any such Related Contract service. It is not in its possessionhereby expressly agreed that Bloomberg Financial Markets is one such reputable service.
Appears in 1 contract
Sources: Loan and Security Agreement (North Haven Private Income Fund LLC)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or, prior to the occurrence of an Event of Default, the Collateral Manager or (b) the verbal instructions of the Administrative Agent or or, prior to the occurrence of an Event of Default, the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or Manager.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments or Required Loan Documents. Under no circumstances will the Collateral Custodian be liable for its indirect, special, punitive, consequential or their own gross negligence incidental damages, such as loss of use, revenue or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)profit.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it. [FS Investment] Loan and Security Agreement
(e) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(df) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral.
(h) The Collateral Custodian may assume the genuineness of any such Required Loan Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each Required Loan Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral to be held by the Collateral Custodian under this Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to be issued or made available in respect of any Collateral or to compel or cause delivery thereof to the Collateral Custodian. Without prejudice to the generality of the foregoing, the Collateral Custodian shall be without liability to the Borrower, Collateral Manager, the Administrative Agent or any other Person for any damage or loss resulting from or caused by events or circumstances beyond the Collateral Custodian’s reasonable control, including nationalization, expropriation, currency restrictions, the interruption, disruption or suspension of the normal procedures and practices of any securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral Manager or the Administrative Agent (including any Responsible Officer of any thereof) in its instructions to the Collateral Custodian; or changes in applicable law, regulation or orders.
(i) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon data information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent obligor or similar party, and the Collateral Custodian shall have no responsibility for the accuracy of any such information or data provided to it by such person and shall be entitled to update its records (as it may deem necessary or appropriate). [FS Investment] Loan Documentand Security Agreement
(j) In the event that (i) the Borrower, Collateral Manager, the Administrative Agent, Lenders, the Collateral Administrator or Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Loan or Required Loan Document or (ii) a third party shall institute any court proceeding by which any Required Loan Document shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Required Loan Documents that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Required Loan Documents as directed by the Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(k) In case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to in the occurrence absence of a continuing of an Event of DefaultDefault or the occurrence of the Termination Date, request instructions from the Borrower or Collateral Manager and during the Services Provider and may, after the occurrence existence of an Event of DefaultDefault or following the occurrence of the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent.
(l) Without limiting the generality of any terms of this section, the Collateral Custodian shall have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Administrative Agent, any agent or the Borrower to provide accurate and complete information on a timely basis to the Collateral Custodian, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Custodian’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(m) The Collateral Custodian shall not be deemed to have knowledge or notice of any matter unless actually known to a Responsible Officer of the Collateral Custodian.
(n) The Collateral Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder, including with respect to any foreign exchange transaction, either directly or, by or through agents or attorneys, and the Collateral Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it. Neither the Collateral Custodian nor any of its affiliates, directors, officers, shareholders, agents or employees will be liable to the Collateral Manager, Borrower or any other Person, except by reason of acts or omissions by the Collateral Custodian constituting bad faith, willful misfeasance, gross negligence or reckless disregard of the Collateral Custodian’s duties hereunder. The Collateral Custodian shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the Administrative Agent, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Administrative Agent, or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Custodian’s own bad faith, willful misfeasance, gross negligence or reckless disregard of its duties hereunder. [FS Investment] Loan and Security Agreement
(o) It is understood and agreed that any foreign exchange transaction effected by the Collateral Custodian acting at the direction of the Administrative Agent, the Borrower or the Collateral Manager may be entered with ▇▇▇▇▇ Fargo Bank, N.A. or its affiliates acting as principal or otherwise through customary banking channels. The Collateral Custodian shall be entitled at all times to comply with any legal or regulatory requirements applicable to currency or foreign exchange transactions. Each party hereto acknowledges that the Collateral Custodian or any affiliates of the Collateral Custodian involved in any such foreign exchange transactions may make a margin or banking income from foreign exchange transactions entered into pursuant to this section for which they shall not be required to account to the Borrower, the Administrative Agent or the Collateral AgentManager. In no event shall All risk and expense incident to such conversion is the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised responsibility of the likelihood of such loss Borrower, the Administrative Agent or damage and regardless of the form of action.
(e) The Document Collateral Manager. Neither the Collateral Custodian nor the Collateral Administrator, shall have no responsibilities (x) responsibility for fluctuations in exchange rates affecting any collections or duties conversion thereof and (y) to the extent it complies with respect to the instructions provided by the respective party, liability for any Related Contract while losses incurred or resulting from the rates obtained in such Related Contract is not in its possessionforeign exchange transactions.
Appears in 1 contract
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected and shall not be liable in acting upon (in the absence of bad faith, gross negligence or willful misconduct) (i) the written instructions of any designated officer of the Administrative Agent or (ii) the verbal instructions of the Administrative Agent or reasonably believed by the Collateral AgentCustodian to be genuine and to have been signed or presented by the applicable designated officer and conforming to the requirements of this Agreement; provided that in the case of any Portfolio Asset File or other request, as applicableinstruction, and no party document or certificate which by any provision hereof is specifically required to be furnished to the Collateral Custodian, the Collateral Custodian shall have any right of action whatsoever against be under a duty to examine the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder same in accordance with the instructions requirements of the Administrative Agent or the this Agreement.
(b) The Collateral Agent. The Document Custodian may consult with counsel satisfactory to selected by it in good faith and with reasonable care and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in reasonable reliance thereon, in good faith and in accordance with the advice or opinion of such counselcounsel and reasonably believed by Collateral Custodian to be authorized or within the discretion of the rights and powers conferred upon it by this Agreement.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection herewith, including, but not limited to, in connection with this Agreementany requirement to obtain certificated Pledged Equity from Borrower or Holdings, except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation (except as expressly set forth in this Agreement) and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio Asset File, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralPortfolio Assets. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder and shall not be required to take such action where the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not assured to it.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing or overseeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to a Portfolio Asset.
(h) Subject in all cases to Section 9.02(b), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of of, and continuance of, an Event of Default, request instructions from the Borrower or the Services Provider Portfolio Asset Servicer and may, after the occurrence of of, and during the continuance of, an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Portfolio Asset Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or reasonably believed by the Collateral AgentCustodian to be genuine and to have been signed or presented by the applicable designated office and conforming to the requirements of this Agreement. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder shall be based upon, and in reliance upon, data, information and notice provided to it by the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(k) The Collateral Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than for the Collateral Custodian’s compensation or for reimbursement of expenses.
(l) The Collateral Custodian shall be under no obligation to make any investigation into the facts or matters stated in any resolution, exhibit, request, representation, opinion, certificate, statement, acknowledgement, consent, order or document in the Portfolio Asset File or any other document or instrument other than as expressly provided for herein.
(m) The Collateral Custodian shall have no duty to see to, or be responsible for the correctness or accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement or other similar filing evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refilling or re-depositing of any thereof.
(n) The Collateral Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities; provided that this subsection shall not be interpreted to impose upon the Collateral Custodian a higher standard of care than that set forth herein.
(o) The Collateral Custodian may perform any and all of its duties and exercise its rights and powers hereunder or under any other Transaction Document by or through any one or more agents, affiliates, sub‑agents or attorneys appointed by the Collateral Custodian. The Collateral Custodian and any such agents, affiliate, sub‑agent or attorneys may perform any and all of its duties and exercise its rights and powers by or through their respective Related Contract while Parties. The exculpatory provisions of this Article shall apply to any such party and to the Related Contract is Parties of the Collateral Custodian and any such party. The Collateral Custodian shall not be responsible for the negligence or misconduct of any agent, affiliate, sub-agents or attorney appointed by it with due care.
(p) The Collateral Custodian shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Transaction Document, (ii) the contents or accuracy of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith and shall not be required to recalculate, certify or verify any information therein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default or Unmatured Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Transaction Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Custodian.
(q) The Collateral Custodian shall incur no liability if, by reason of any provision of any future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, epidemic or pandemic, act of war or terrorism, or other circumstances beyond its possessionreasonable control, the Collateral Custodian shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Agreement or any other Transaction Document.
(r) Knowledge of the Collateral Custodian shall not be attributed or imputed to ▇▇▇▇▇ Fargo’s other roles in the transaction (other than those where the roles are performed by the same group or division within ▇▇▇▇▇ Fargo or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of ▇▇▇▇▇ Fargo (and vice versa).
(s) The Collateral Custodian shall not be responsible for the acts or omissions of any other party to this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Documentparties to the Collateral Portfolio. In 164 DMSLIBRARY01\32370595.v1
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Final Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities or duty to perform any of the duties with respect to any Related Contract while such Related Contract is not in its possessionof the Collateral Custodian under this Agreement.
Appears in 1 contract
Limitation on Liability. (a) The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) Neither the Document Custodian nor any of its directors, officers, agentsagents or employees, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under hereunder or in connection with herewith in good faith and believed by it or them to be within the purview of this Agreement, except for its or their own gross negligence negligence, lack of good faith or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agentmisconduct. In no event shall the Document Custodian be liable for punitiveor any of its directors, specialofficers, indirect agents, or consequential loss employees have any responsibility to inquire, ascertain or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actiontake action except as expressly provided herein.
(eb) The Document Custodian shall have responsibility only for the Asset Files and any other documents which have been actually delivered to it and which have not been released to the Sellers, Buyer, Takeout Investor, any Agency or assignee or their respective agent or designee in accordance with this Agreement. The standard of care to be exercised by Custodian in the custody of the Asset Files under this Agreement shall be to exercise the same degree of care as Custodian exercises when it holds mortgage loan documents as security for its own loans or warehouse loans. Custodian is an agent, bailee and custodian only and is not intended to be, nor shall it be construed to be (except only as agent, bailee and custodian), a representative, trustee or fiduciary of, or for, each Seller, any Agency, Buyer, Takeout Investor or assignee. Custodian shall not be bound in any way by any agreement or contract other than this Agreement, including, without limitation, the Repurchase Agreement, and the exhibits and schedules hereto and any other agreement to which it is a party. Custodian shall not be required to ascertain or inquire as to the performance or observance of any of the conditions or agreements to be performed or observed by any other party, except as specifically provided in this Agreement and the exhibits and schedules hereto. Custodian disclaims any responsibility for the validity or accuracy of the recitals to this Agreement and any representations and warranties contained herein, unless specifically identified as recitals, representations or warranties of Custodian.
(i) Custodian shall have no responsibility for ascertaining the value, collectability, insurability, enforceability, effectiveness, recordability, or suitability of any Eligible Asset, the title of any party therein, the validity, adequacy, perfection or priority of the security afforded thereby, or the validity of this Agreement (except as to Custodian's authority to enter into this Agreement and to perform its obligations hereunder).
(ii) Custodian shall not be under any duty to examine or pass upon the genuineness, validity or legal sufficiency of any of the documents constituting part of any Asset File, and shall be entitled to assume that all documents constituting part of such files are genuine and valid and that they are what they purport to be, and that any endorsements or assignments thereof are genuine and valid.
(iii) No provision of this Agreement shall require Custodian to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if, in its sole judgment, it shall believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(iv) Custodian is not responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than for Custodian's compensation or for reimbursement of expenses.
(v) The Custodian shall not be responsible for the monitoring of, or the validity and perfection of the Buyer's security interest in the Mortgages and the Eligible Assets hereunder, other then the obligation to take possession of the Asset File for each Eligible Asset.
(vi) The Custodian shall have no duties or responsibilities except those that are specifically set forth herein, shall not be liable except for the performance of such duties and obligations and no implied covenants or duties obligations shall be read into this Agreement against the Custodian.
(vii) The Custodian shall be under no obligation to make any investigation into the facts or matters stated in any Written Instructions, direction, resolution, certificate, statement, acknowledgment, consent order, notice, request, document in the Asset File, or any other document received from the Buyer or the Sellers.
(viii) In the absence of bad faith on the part of the Custodian, the Custodian shall not be liable with respect to any Related Contract while action taken or omitted to be taken in accordance with Written Instructions, direction, acknowledgement, consent or any other communication from the Buyer.
(ix) In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of any request, instructions, certificates or other documents furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties; but in the case of any document contained in an Asset File or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not it conforms in form to the requirements of this Agreement.
(x) If the Custodian requests Written Instructions from the Buyer with respect to any action or omission in connection with this Agreement, the Custodian shall be entitled (without incurring any liability therefore to the Buyer or any other Person) to refrain from taking such Related Contract is not in its possessionaction and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to such request.
Appears in 1 contract
Sources: Custodial Agreement (American Home Mortgage Investment Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the oral instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except, except for notwithstanding anything to the contrary contained herein, in the case of its willful misconduct, bad faith or their own gross negligence grossly negligent performance or willful misconduct (each as determined omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)its grossly negligent performance of its Payment Duties and in the case of its grossly negligent performance of its duties in taking and retaining custody of the Underlying Instruments.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders), and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionCollateral.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Finance Corp)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected and shall not be liable in acting upon (in the absence of bad faith, gross negligence or willful misconduct) (i) the written instructions of any designated officer of the Administrative Agent or (ii) the verbal instructions of the Administrative Agent or reasonably believed by the Collateral AgentCustodian to be genuine and to have been signed or presented by the applicable designated officer and conforming to the requirements of this Agreement; provided that in the case of any Portfolio Asset File or other request, as applicableinstruction, and no party document or certificate which by any provision hereof is specifically required to be furnished to the Collateral Custodian, the Collateral Custodian shall have any right of action whatsoever against be under a duty to examine the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder same in accordance with the instructions requirements of the Administrative Agent or the this Agreement.
(b) The Collateral Agent. The Document Custodian may consult with counsel satisfactory to selected by it in good faith and with reasonable care and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in reasonable reliance thereon, in good faith and in accordance with the advice or opinion of such counselcounsel and reasonably believed by Collateral Custodian to be authorized or within the discretion of the rights and powers conferred upon it by this Agreement.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection herewith, including, but not limited to, in connection with this Agreementany requirement to obtain certificated Pledged Equity from Borrower or Holdings, except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation (except as expressly set forth in this Agreement) and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio Asset File, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralPortfolio Assets. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder and shall not be required to take such action where the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not assured to it.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing or overseeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to a Portfolio Asset.
(h) Subject in all cases to Section 9.02(b), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of of, and continuance of, an Event of Default, request instructions from the Borrower or the Services Provider Portfolio Asset Servicer and may, after the occurrence of of, and during the continuance of, an Event of Default, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Portfolio Asset Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or reasonably believed by the Collateral AgentCustodian to be genuine and to have been signed or presented by the applicable designated office and conforming to the requirements of this Agreement. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder shall be based upon, and in reliance upon, data, information and notice provided to it by the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(j) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(k) The Collateral Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than for the Collateral Custodian’s compensation or for reimbursement of expenses.
(l) The Collateral Custodian shall be under no obligation to make any investigation into the facts or matters stated in any resolution, exhibit, request, representation, opinion, certificate, statement, acknowledgement, consent, order or document in the Portfolio Asset File or any other document or instrument other than as expressly provided for herein.
(m) The Collateral Custodian shall have no duty to see to, or be responsible for the correctness or accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement or other similar filing evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refilling or re-depositing of any thereof.
(n) The Collateral Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities; provided that this subsection shall not be interpreted to impose upon the Collateral Custodian a higher standard of care than that set forth herein.
(o) The Collateral Custodian may perform any and all of its duties and exercise its rights and powers hereunder or under any other Transaction Document by or through any one or more agents, affiliates, sub-agents or attorneys appointed by the Collateral Custodian. The Collateral Custodian and any such agents, affiliate, sub-agent or attorneys may perform any and all of its duties and exercise its rights and powers by or through their respective Related Contract while Parties. The exculpatory provisions of this Article shall apply to any such party and to the Related Contract is Parties of the Collateral Custodian and any such party. The Collateral Custodian shall not be responsible for the negligence or misconduct of any agent, affiliate, sub-agents or attorney appointed by it with due care.
(p) The Collateral Custodian shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Transaction Document, (ii) the contents or accuracy of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith and shall not be required to recalculate, certify or verify any information therein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default or Unmatured Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Transaction Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Custodian.
(q) The Collateral Custodian shall incur no liability if, by reason of any provision of any future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, epidemic or pandemic, act of war or terrorism, or other circumstances beyond its possessionreasonable control, the Collateral Custodian shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Agreement or any other Transaction Document.
(r) Knowledge of the Collateral Custodian shall not be attributed or imputed to ▇▇▇▇▇ Fargo’s other roles in the transaction (other than those where the roles are performed by the same group or division within ▇▇▇▇▇ Fargo or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of ▇▇▇▇▇ Fargo (and vice versa).
(s) The Collateral Custodian shall not be responsible for the acts or omissions of any other party to this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Exantas Capital Corp.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Collateral Agent. ‑202‑
(b) The Document Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Termination Date, request instructions from the Borrower or the Services Provider Collateral Manager and may, after the occurrence of an Event of DefaultDefault or the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Collateral Manager or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) In no event shall the Collateral Custodian be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes, lockouts, embargo, government action (including any laws, ordinances, regulations), ‑203‑ interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services or the like that delay, restrict or prohibit the provision of services by the Collateral Custodian as contemplated by this Agreement. The Collateral Custodian may execute any of its duties by or through its subsidiaries, affiliates, agents or attorneys-in-fact; provided that, no such delegations shall relieve the Collateral Agent of its responsibilities with respect to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorney-in-fact selected by it with reasonable care.
(j) The Document Collateral Custodian shall not be bound to make an independent investigation into the facts or matters stated in any notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document; provided that if the form thereof is specifically prescribed in any way by the terms of this Agreement, the Collateral Custodian shall examine the same to determine whether it substantially conforms on its face to such requirements hereof.
(k) Nothing herein shall obligate the Collateral Custodian to commence, prosecute or defend legal proceedings in any instance, whether on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or relating to this Agreement or the services contemplated hereby.
(l) The Collateral Custodian shall in no event have any liability for the actions or omissions of the Administrative Agent, the Collateral Manager, or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Administrative Agent, the Collateral Manager, or any other Person. The Collateral Custodian shall not be liable for failing to perform or delay in performing its specified duties hereunder which result from or is caused by a failure or delay on the part of the Administrative Agent, the Collateral Manager, or any other Person in furnishing necessary, timely and accurate information to the Collateral Custodian.
(m) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Custodian of its various duties hereunder (including, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Custodian shall have no responsibilities responsibility for the accuracy of any such information or duties with respect data provided to any Related Contract while it by such Related Contract is not in persons and shall be entitled to update its possessionrecords (as it may deem necessary or appropriate).
Appears in 1 contract
Sources: Loan and Servicing Agreement (MSD Investment Corp.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificatecertificate (including an Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, instructionletter, statementfacsimile, request, waiver, consent, report, letter electronic transmission or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed or presented by the proper party or parties. The Document Custodian Any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Responsible Officer shall not be bound considered signed or executed by such Responsible Officer on behalf of the applicable Person, and the Collateral Agent shall have no duty to make any independent investigation inquire into or investigate the facts authenticity or matters stated in authorization of any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral AgentManager. The Collateral Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be within the discretion or powers conferred upon it, as applicableor taken by it pursuant to any direction or instruction by which it is governed hereunder, and no party shall have any right of action whatsoever against the Document Custodian as a result or omitted to be taken by it by reason of the Document Custodian acting lack of direction or instruction required hereby for such action.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreementherewith except in the case of its willful misconduct, except for bad faith or grossly negligent performance or omission of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction)duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Without limiting the generality of the foregoing, the Collateral Agent, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Collateral Manager or the Borrower, shall not be responsible for any action or omission of the Administrative Agent, the Lenders, the Collateral Manager, the Borrower or any Lender and, absent written notice to a Responsible Officer of the Collateral Agent, shall be entitled to assume that such person is in compliance with its obligations under this Agreement or any other document related to this transaction.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing or overseeing the performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence Collateral.
(h) The Collateral Agent may execute any of an Event of Defaultthe trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or that the Collateral Agent shall not be responsible for any actions or omissions on the part of any non-Affiliated agent or attorney appointed with due care by it hereunder.
(each on behalf i) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services); errors by the Majority Lenders)Collateral Manager or any other Secured Party in its instructions to the Collateral Agent; or changes in applicable law, regulation or orders.
(j) The Collateral Agent shall have no responsibility and shall be entitled have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at all times to refrain from any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action unless to perfect or maintain the perfection of any security interest granted to it has received instructions from hereunder or otherwise or (iv) the validity or perfection of any such Persons, as applicable. The Document Custodian shall in all events have no liability, risk lien or cost for any action taken pursuant security interest.
(k) In order to and in compliance comply with the instruction laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (collectively, “Applicable Banking Laws”), the Administrative Collateral Agent or may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Collateral Agent to comply with Applicable Banking Laws.
(l) In no event shall the Document Custodian Collateral Agent be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), profits or diminution in value) even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage damages and regardless of the form of such action.
(em) The Document Custodian Collateral Agent shall be under no obligation to exercise or to honor any of the discretionary rights or powers vested in it by this Agreement at the request or direction of the Administrative Agent or any Lender, unless the Administrative Agent or such Lender shall have provided to the Collateral Agent security or indemnity reasonably satisfactory to it against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such request or direction.
(n) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic transmission or document, but the Collateral Agent, in its discretion, may, and upon the written direction of the Administrative Agent shall, make such further inquiry or investigation into such facts or matters as it shall be directed, and the Collateral Agent shall be entitled, on not less than five (5) Business Days’ prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Advances and the Loans, personally or by agent or attorney, at a mutually agreed time during the Borrower’s or the Collateral Manager’s normal business hours; provided that prior to the occurrence of an Event of Default that has not been cured, waived or rescinded, such examination shall not occur more than twice in any twelve month period.
(o) The Collateral Agent shall (i) not have any obligation to determine if a Loan meets the criteria specified in the definition of Eligible Loan, (ii) have no discretion to select or make investments but shall be entitled to solely rely upon the investment directions of the Borrower (or the Collateral Manager on behalf of the Borrower) and (iii) have no duty or liability to independently confirm or determine whether any investment made hereunder qualifies as a Permitted Investment.
(p) The Collateral Agent shall not be liable for the actions or omissions of the Collateral Manager, the Borrower or the Administrative Agent and the Collateral Agent shall not be under any obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof, or, other than as expressly set forth herein, to verify or independently determine the accuracy of information received by it from the Collateral Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Collateral.
(q) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except for (x) as expressly set forth herein and (y) the reasonable care of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no responsibilities duty as to any Collateral or responsibility for (i) ascertaining or taking action with respect to calls, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.
(r) The Collateral Agent shall not be deemed to have notice or knowledge of any matter unless a Responsible Officer of the Collateral Agent has actual knowledge thereof or unless written notice thereof is received by the Collateral Agent at the Corporate Trust Office and such notice references the Borrower or this Agreement or otherwise identifies the Transaction Documents.
(s) The Collateral Agent and its respective affiliates, directors, officers, agents or employees shall not be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation of the Borrower, the Collateral Manager, the Equityholder, the Administrative Agent or any Lender made in connection with this Agreement; (ii) the performance or observance of any of the covenants or agreements of the Borrower, Collateral Manager or the Equityholder or to inspect the property (including the books and records) of any of the Borrower, Collateral Manager or the Equityholder; (iii) the satisfaction of any condition specified in Article III; or (iv) the validity, effectiveness or genuineness of this Agreement, the other Transaction Documents or any other instrument or writing furnished by the Borrower, the Collateral Manager, the Equityholder, the Administrative Agent or any Lender in connection herewith. Other than as expressly set forth in a Transaction Document as an obligation of the Collateral Agent, the Collateral Agent shall be under no obligation to take any action to collect from any Obligor any amount payable by such Obligor on any related Loan or any other Collateral under any circumstances, including if payment is refused after due demand upon such Obligor.
(t) It is expressly acknowledged by the parties hereto that the application and performance by the Collateral Agent of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Collateral Manager, the Administrative Agent, the Borrower and/or any related bank agent, obligor or similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(u) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Agent in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. Each Borrower hereby agrees that it shall provide the Collateral Agent with such information as it may reasonably request including, but not limited to, such Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify such Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(v) The Collateral Agent shall not have any responsibility for preparing, filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder.
(w) The Collateral Agent shall not be liable for any obligation of the Collateral Manager or the Borrower contained in this Agreement or for any errors of the Collateral Manager or the Borrower contained in any computer tape, certificate or other data or document delivered to the Collateral Agent hereunder or on which the Collateral Agent must rely in order to perform its obligations hereunder, and the Secured Parties, the Administrative Agent and the Collateral Agent each agree to look only to the Collateral Manager to perform such obligations. The Collateral Agent shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its duties under this Agreement if such failure or delay results from the Collateral Agent acting in accordance with information prepared or provided by a Person other than the Collateral Agent or the failure of any such other Person to prepare or provide such information. The Collateral Agent shall have no responsibility, shall not be in default and shall incur no liability for (i) any act, delay or failure to act of any third party, including the Collateral Manager, (ii) any inaccuracy or omission in a notice or communication received by the Collateral Agent from any third party, including the Collateral Manager, (iii) the invalidity or unenforceability of any Collateral under Applicable Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Related Contract while such Related Contract is not in its possessionCollateral, or (v) the acts or omissions of any successor Collateral Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in USActive 57833767.7 respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Collateral Custodian may execute any of its duties under this Agreement or any other Transaction Document by or through agents, employees or attorneys-in-fact (in each case, prior to the occurrence and continuation of a Termination Event, that are not Prohibited Transferees), and shall not be responsible for the negligence or misconduct of any agents or attorneys in fact selected by it with reasonable care.
(e) The Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(df) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(g) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(h) The Collateral Custodian shall not be liable for the acts or omissions of the Collateral Agent under this Agreement and shall not be required to monitor the performance of the Collateral Agent. Notwithstanding anything herein to the contrary, the Collateral Custodian in such capacity shall have no duty to perform any of the duties of the Collateral Agent under this Agreement.
(i) It is expressly agreed and acknowledged that the Document Collateral Custodian is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(j) Subject in all cases to the last sentence of Section 8.2(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an a Termination Event of Defaultor the Termination Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.USActive 57833767.7
Appears in 1 contract
Sources: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificatecertificate (including an Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter facsimile or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral AgentManager. The Collateral Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be within the discretion or powers conferred upon it, as applicableor taken by it pursuant to any direction or instruction by which it is governed hereunder, and no party shall have any right of action whatsoever against the Document Custodian as a result or omitted to be taken by it by reason of the Document Custodian acting lack of direction or instruction required hereby for such action.
(where so instructedb) refraining from acting hereunder in accordance with the instructions of the Administrative The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).-120- USActive 55348338.2
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Without limiting the generality of the foregoing, the Collateral Agent, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Collateral Manager or the Borrower, shall not be responsible for any action or omission of the Administrative Agent, the Lenders, the Collateral Manager, the Borrower or any Lender and, absent written notice to a Responsible Officer of the Collateral Agent, shall be entitled to assume that such person is in compliance with its obligations under this Agreement or any other document related to this transaction.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior parties to the occurrence Collateral.
(h) The Collateral Agent may execute any of an Event of Defaultthe trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or that the Collateral Agent shall not be responsible for any actions or omissions on the part of any non- Affiliated agent or attorney appointed with due care by it hereunder.
(each on behalf i) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services); errors by the Majority Lenders)Collateral Manager or any other Secured Party in its instructions to the Collateral Agent; or changes in applicable law, regulation or orders.
(j) The Collateral Agent shall have no responsibility and shall be entitled have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at all times to refrain from any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk to perfect or cost for maintain the perfection of any action taken pursuant security -121- USActive 55348338.2
(k) In order to and in compliance comply with the instruction laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (collectively, "Applicable Banking Laws"), the Administrative Collateral Agent or may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Collateral Agent to comply with Applicable Banking Laws.
(l) In no event shall the Document Custodian Collateral Agent be liable for special, punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), profits or diminution in value) even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage damages and regardless of the form of such action.
(em) The Document Custodian Collateral Agent shall be under no obligation to exercise or to honor any of the discretionary rights or powers vested in it by this Agreement at the request or direction of the Administrative Agent or any Lender, unless the Administrative Agent or such Lender shall have provided to the Collateral Agent security or indemnity reasonably satisfactory to it against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such request or direction.
(n) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document, but the Collateral Agent, in its discretion, may, and upon the written direction of the Administrative Agent shall, make such further inquiry or investigation into such facts or matters as it shall be directed, and the Collateral Agent shall be entitled, on not less than five (5) Business Days’ prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Advances and the Loans, personally or by agent or attorney, at a mutually agreed time during the Borrower’s or the Collateral Manager’s normal business hours; provided that prior to the occurrence of an Event of Default that has not been cured, waived or rescinded, such examination shall not occur more than twice in any twelve month period.
(o) The Collateral Agent shall (i) not have any obligation to determine if a Loan meets the criteria specified in the definition of Eligible Loan, (ii) have no discretion to select or make investments but shall be entitled to solely rely upon the investment directions of the Borrower (or the Collateral Manager on behalf of the Borrower) and (iii) have no duty or liability to independently confirm or determine whether any investment made hereunder qualifies as a Permitted Investment.
(p) The Collateral Agent shall not be liable for the actions or omissions of the Collateral Manager, the Borrower or the Administrative Agent and the Collateral Agent shall not be under any obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof, or, other than as expressly set forth herein, to verify or independently determine -122- USActive 55348338.2
(q) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except for (x) as expressly set forth herein and (y) the reasonable care of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no responsibilities duty as to any Collateral or responsibility for (i) ascertaining or taking action with respect to calls, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.
(r) The Collateral Agent shall not be deemed to have notice or knowledge of any matter unless a Responsible Officer of the Collateral Agent has actual knowledge thereof or unless written notice thereof is received by the Collateral Agent at the Corporate Trust Office and such notice references the Borrower or this Agreement or otherwise identifies the Transaction Documents.
(s) The Collateral Agent and its respective affiliates, directors, officers, agents or employees shall not be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation of the Borrower, the Collateral Manager, the Equity Investor, the Administrative Agent or any Lender made in connection with this Agreement; (ii) the performance or observance of any of the covenants or agreements of the Borrower, Collateral Manager or the Equity Investor or to inspect the property (including the books and records) of any of the Borrower, Collateral Manager or the Equity Investor; (iii) the satisfaction of any condition specified in Article III; or (iv) the validity, effectiveness or genuineness of this Agreement, the other Transaction Documents or any other instrument or writing furnished by the Borrower, the Collateral Manager, the Equity Investor, the Administrative Agent or any Lender in connection herewith. Other than as expressly set forth in a Transaction Document as an obligation of the Collateral Agent, the Collateral Agent shall be under no obligation to take any action to collect from any Obligor any amount payable by such Obligor on any related Loan or any other Collateral under any circumstances, including if payment is refused after due demand upon such Obligor.
(t) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and its implementing regulations, the Collateral Agent in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower hereby agrees that it shall provide the Collateral Agent with such information as it may reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number (or, that of the Equity Investor, if applicable) and other information that will help the Collateral Agent to identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(u) The Collateral Agent shall not have any responsibility for preparing, filing -123- USActive 55348338.2
(v) The Collateral Agent shall not be liable for any obligation of the Collateral Manager or any Loan Party contained in this Agreement or for any errors of the Collateral Manager or any Loan Party contained in any computer tape, certificate or other data or document delivered to the Collateral Agent hereunder or on which the Collateral Agent must rely in order to perform its obligations hereunder, and the Secured Parties, the Administrative Agent and the Collateral Agent each agree to look only to the Collateral Manager to perform such obligations. The Collateral Agent shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its duties under this Agreement if such failure or delay results from the Collateral Agent acting in accordance with information prepared or provided by a Person other than the Collateral Agent or the failure of any such other Person to prepare or provide such information. The Collateral Agent shall have no responsibility, shall not be in default and shall incur no liability for (i) any act, delay or failure to act of any third party, including the Collateral Manager, (ii) any inaccuracy or omission in a notice or communication received by the Collateral Agent from any third party, including the Collateral Manager, (iii) the invalidity or unenforceability of any Collateral under Applicable Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Related Contract while such Related Contract is not in its possessionCollateral, or (v) the acts or omissions of any successor Collateral Agent.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Nuveen Churchill Direct Lending Corp.)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any signature, certificate, instrument, statement, resolution, request, direction, consent, order, report, bond, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document document, paper or electronic communication delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Collateral Agent. Any electronically signed document delivered via email from a person purporting to be a Responsible Officer shall be considered signed or executed by such Responsible Officer on behalf of the applicable Person. The Document Custodian Collateral Agent shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely, in good faith, on any such electronic signature without any liability with respect thereto.
(b) The Collateral Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties.
(d) The Collateral Agent makes no warranty or representation shall not be taken by it responsible for any statements, warranties or them as Document Custodian under representations made in or in connection with this AgreementAgreement by any other party hereto, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian or any other party under this Agreement or the other Transaction Documents and shall not be required to monitor the performance of the Collateral Custodian or any other party under this Agreement or the other Transaction Documents. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulation) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
(k) The Collateral Agent: (i) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any of the other Transaction Documents on the part of the Borrower or the Servicer or to inspect the property (including the books and records) of the Borrower or the Servicer; and (ii) shall not be responsible (other than on behalf of itself) for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto.
(l) The Collateral Agent shall have no responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(m) The rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by the entity serving as the Collateral Agent in each of its capacities hereunder and in each of its capacities as under any related document whether or not specifically set forth therein and each agent, custodian and other Person employed to act hereunder and under any related document, as the case may be, including, without limitation, the Collateral Custodian and the Account Bank.
(n) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including but not limited to the Patriot Act and other Anti-Money Laundering Laws, the Collateral Agent may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Collateral Agent to comply with such laws.
(o) The Collateral Agent shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of Term SOFR (or any other applicable Benchmark or Benchmark Replacement (Dollar)), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event, Benchmark Replacement Date or any material disruption or other event relating to Term SOFR or any other Benchmark, (ii) to select, determine or designate any Benchmark, Benchmark Replacement (Dollar) or other alternative, successor or replacement rate, or whether any conditions to the designation of such a rate have been satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment or other spread adjustment or modifier to any Benchmark, or (iv) to determine whether or what Benchmark Replacement Conforming Changes or other amendments or changes are necessary or advisable, if any, in connection with any of the foregoing and, with respect to each floating rate Eligible Loan Asset, the Collateral Agent shall have any Related Contract while responsibility or liability to (w) monitor the status of Term SOFR or other applicable reference rate or benchmark (including the London interbank offered rate), (x) determine whether a substitute index or reference rate should or could be selected, (y) determine the selection of any such Related Contract is substitute reference rate, and (z) exercise any right related to the foregoing on behalf of the Borrower, the Administrative Agent, the Lenders or any other Person.
(p) The Collateral Agent shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in its possessionthis Agreement as a result of the unavailability of Term SOFR (or any Benchmark Replacement (Dollar)) or any other Benchmark and absence of any Benchmark, including as a result of any inability, delay, error or inaccuracy on the part of any other party hereto, including without limitation the Borrower, the Servicer or the Administrative Agent, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or |US-DOCS\148390876.14|| for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Documentparties to the Collateral. In Subject in all cases to the last sentence of Section 11.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Custodian Each of the protections, reliances, indemnities and immunities offered to the Collateral Agent under ARTICLE X shall have no responsibilities or duties with respect be afforded to any Related Contract while such Related Contract is not in its possessionthe Collateral Custodian.
Appears in 1 contract
Limitation on Liability. (a) 14.1 The Document Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian Common Collateral Agent shall not be bound liable to make any independent investigation into person (including without limitation the facts or matters stated in any such noticeIssuer, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it Chargor and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bSecured Parties) Neither the Document Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of judgment, or for any action taken or omitted to be taken by it or them as Document Custodian under for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in connection with this Agreement, except for its or their own the absence of gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) wilful default on its part. The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value of any of the Collateral.
(d) It is expressly agreed and acknowledged that the Document Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In case any reasonable question arises as to its duties hereunder, the Document Custodian may, prior to the occurrence of an Event of Default, request instructions from the Borrower or the Services Provider and may, after the occurrence of an Event of Default, request instructions from the Administrative Agent or the Common Collateral Agent (each on behalf of the Majority Lenders)is authorized to act, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Persons, as applicable. The Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian not be liable for punitiveacting, specialin reliance upon any judgment, indirect order, instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or consequential loss other writing delivered to it by any other party without being required to determine the authenticity or damage validity thereof, the correctness of any kind whatsoever fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgement or order. The Common Collateral Agent may act in reliance upon any signature believed by it to be genuine and may assume that such person has been properly authorized to do so. The Common Collateral Agent shall not be liable (i) for any indirect, consequential, punitive or special damages (including but not limited to lost profitsloss of business, goodwill, opportunity or profit), even if the Document Custodian has been advised of the likelihood of such loss or damage and regardless of the form of actionaction and whether or not (a) any such damages arise directly or indirectly, (b) any such damages were foreseeable or contemplated or the possibility of which was advised or known to the Common Collateral Agent or (c) the claim for such damages is made in negligence, breach of contract or otherwise or (ii) for the acts or omissions of any nominees, correspondents, designees, agents, delegates, subagents or subcustodians selected by the Common Collateral Agent with due care.
(e) 14.2 The Document Custodian Common Collateral Agent shall have not be liable to account for interest on money paid to it by the Issuer.
14.3 The Common Collateral Agent is not responsible for and will make no responsibilities investigation as to the title, ownership, value, sufficiency or duties with respect existence of any of the assets which are the subject of the Pari Passu Collateral.
14.4 The Common Collateral Agent is not required to be the registered holder of title to any Related Contract while such Related Contract assets comprising the Pari Passu Collateral prior to enforcement.
14.5 The Common Collateral Agent is not responsible for and will make no investigation as to the existence, accuracy or sufficiency of any legal or other opinions, searches, reports, certificates, valuations or investigations given or required in its possessionconnection with any of the Pari Passu Collateral.
14.6 The Common Collateral Agent shall be entitled to call for and rely on any certificate of any party hereto as to any matter on which the Common Collateral Agent requires to be satisfied. The Common Collateral Agent shall not be liable for acting or not acting (or relying) on such information in good faith.
14.7 This Section 14 shall survive the resignation or removal of the Common Collateral Agent and the termination of this Agreement
Appears in 1 contract
Sources: Indenture (Azure Power Global LTD)
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written instructions of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions designated officer of the Administrative Agent.
(b) The Collateral Agent or the Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct, bad faith, fraud or grossly negligent performance or omission of its duties.
(d) The Collateral Agent makes no warranty or representation, shall not be taken by it responsible for any statements, warranties or them as Document Custodian under representations made in or in connection with this AgreementAgreement by any other party hereto, except for its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court of competent jurisdiction).
(c) The Document Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, perfection, priority, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other Collateral, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral.
(h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to except during the occurrence continuance of an Event of DefaultDefault or after the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after during the occurrence continuance of an Event of DefaultDefault or after the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) In no event shall the Collateral Agent be liable for any failure or duties delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulation) or the like that delay, restrict or prohibit the providing of services by the Collateral Agent as contemplated by this Agreement.
(k) The Collateral Agent: (i) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any of the other Transaction Documents on the part of the Borrower or the Servicer or to inspect the property (including the books and records) of the Borrower or the Servicer; and (ii) shall not be responsible (other than on behalf of itself) for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto.
(l) The Collateral Agent shall have no responsibility and shall have no liability for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or security interest.
(m) The rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by the entity serving as the Collateral Agent in each of its capacities hereunder and in each of its capacities as under any related document whether or not specifically set forth therein and each agent, custodian and other Person employed to act hereunder and under any related document, as the case may be, including, without limitation, the Collateral Custodian and the Account Bank.
(n) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Agent in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower and the Servicer hereby agrees that it shall provide the Collateral Agent with such Related Contract is information as it may reasonably request including, but not in its possessionlimited to, the Borrower’s or the Servicer’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify the Borrower’s or the Servicer’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Limitation on Liability. (a) The Document Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instructionletter, statement, request, waiver, consent, report, letter telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (b) the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the verbal instructions of the Administrative Agent or the Agent.
(b) The Collateral Agent. The Document Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document The Collateral Custodian nor any of its directors, officers, agents, or employees shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined or grossly negligent performance or omission of its duties and in a final, non-appealable judgment by a court the case of competent jurisdiction)the negligent performance of its duties in taking and retaining custody of the Required Loan Documents.
(cd) The Document Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Document. In parties to the Collateral Portfolio.
(h) Subject in all cases to the last sentence of Section 13.02(c)(i), in case any reasonable question arises as to its duties hereunder, the Document Collateral Custodian may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Agent, as applicable. The Document Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Collateral Custodian be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Document Custodian shall have no responsibilities or duties with respect to any Related Contract while such Related Contract is not in its possession.
Appears in 1 contract
Limitation on Liability. (a) The Document Custodian Collateral Agent may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, instruction, statement, request, waiver, consent, report, letter or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Document Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement certificate, request, waiver, consent, opinion, report, receipt or other paper or document. The Document Custodian Collateral Agent may rely conclusively on and shall be fully protected in acting upon the written (including electronic) instructions of any designated officer of the Administrative Agent or the Collateral Agent, as applicable, and no party shall have any right of action whatsoever against the Document Custodian as a result of the Document Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Administrative Agent or the Collateral Agent. The Document Custodian Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the CollateralAgent.
(b) The Collateral Agent may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) Neither the Document Custodian nor any of its directors, officers, agents, or employees The Collateral Agent shall not be liable for any error of judgment, or for any action act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or them as Document Custodian under or refrain from doing in connection with this Agreement, herewith except for in the case of its or their own gross negligence or willful misconduct (each as determined in a final, non-appealable judgment by a court or grossly negligent performance or omission of competent jurisdiction)its duties.
(cd) The Document Custodian Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Related Contracts, the Collateral Loans or any other CollateralPortfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the CollateralCollateral Portfolio. The Collateral Agent shall not be obligated to take any legal action hereunder that might in its judgment be contrary to Applicable Law or involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(de) The Collateral Agent shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Agent. Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(f) The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Document Custodian Collateral Agent is not overseeing or guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any other Loan Documentparties to the Collateral Portfolio. In (h) Subject in all cases to the last sentence of Section 2.05, in case any reasonable question arises as to its duties hereunder, the Document Custodian Collateral Agent may, prior to the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Borrower or the Services Provider Servicer and may, after the occurrence of an Event of DefaultDefault or the Facility Maturity Date, request instructions from the Administrative Agent or the Collateral Agent (each on behalf of the Majority Lenders)Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from such Personsthe Servicer or the Administrative Agent, as applicable. The Document Custodian Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Collateral Agent. In no event shall the Document Custodian Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Document Custodian Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(ei) The Document Collateral Agent shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian. Notwithstanding anything herein to the contrary, the Collateral Agent shall have no responsibilities duty to perform any of the duties of the Collateral Custodian under this Agreement.
(j) It is expressly acknowledged by the parties hereto that application and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower and/or any related bank agent, obligor or duties similar party, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).
(k) The Collateral Agent shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services).
(l) The parties acknowledge that in accordance with respect the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Agent in order to any Related Contract while help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. The Borrower hereby agrees that it shall provide the Collateral Agent with such Related Contract is information as it may reasonably request including, but not in its possessionlimited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Agent to identify and verify the identities of the Borrower such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 1 contract