Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder. (b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses). (c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein. (d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability. (e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder. (f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions. (g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder. (h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until: (i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or (ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested. (iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 3 contracts
Sources: Escrow Agreement (Bunker Hill Mining Corp.), Escrow Agreement (Bunker Hill Mining Corp.), Escrow Agreement (Bunker Hill Mining Corp.)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Asset Pool One Supplement is executed and delivered by the Escrow Holder shall incur no Liability Transferor not individually or personally but solely as Beneficiary under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by the Transferor or Chase USA but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on the Transferor or willful misconductChase USA individually or personally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to the Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will the Transferor or Chase USA be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Asset Pool One Supplement or any related documents.
(b) None of the provisions hereof shall be construed so as to require Collateral Agent, the Escrow Agent to expend Indenture Trustee, the Owner Trustee, the Transferor, Chase USA or risk any other Beneficiary of the Issuing Entity or any of its own funds their respective officers, directors, employees, incorporators or otherwise incur agents will have any liability in with respect to this Asset Pool One Supplement, and recourse may be had solely to the performance of its duties Collateral pledged to secure the Asset Pool One Notes under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)this Asset Pool One Supplement.
(c) If it becomes illegal It is expressly understood and agreed by the parties hereto that (a) this Asset Pool One Supplement is executed and delivered by Wilmington Trust Company (“WTC”), not individually or impossible for the Escrow Holder to carry out any personally but solely as Owner Trustee of the provisions hereofTrust, in the Escrow Agent shall incur no liability as a consequence exercise of the enforceability of lack thereof of any agreements referred to herein.
powers and authority conferred and vested in it, (db) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights each of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming representations, undertakings and having jurisdiction agreements herein made on the part of the parties Trust is made and the money involved herein intended not as personal representations, undertakings and affected hereby; or
(ii) all differences have been adjudicated agreements by agreement WTC but is made and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief intended for the purpose of having binding only the respective rights Trust, (c) nothing herein contained shall be construed as creating any liability on WTC, individually or personally, to perform any covenant either expressed or implied contained herein of the claimants adjudicatedTrust, all such liability, if any, being expressly waived by the parties hereto and deposit with by any Person claiming by, through or under the court all documents parties hereto, (d) WTC has not verified and property held hereundermade no investigation as to the accuracy or completeness of any representations and warranties made by the Trust in this Asset Pool One Supplement and (e) under no circumstances shall WTC be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against representation, warranty or covenant made or undertaken by the interpled funds and shall constitute a lien thereonTrust under this Asset Pool One Supplement or any other related documents.
Appears in 3 contracts
Sources: Asset Pool Supplement (Chase Card Funding LLC), Asset Pool Supplement (Chase Issuance Trust), Asset Pool Supplement
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Asset Pool One Supplement is executed and delivered by the Escrow Holder shall incur no Liability Transferor not individually or personally but solely as Beneficiary under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by the Transferor or JPMCB but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on the Transferor or willful misconductJPMCB individually or personally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to the Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will the Transferor or JPMCB be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Asset Pool One Supplement or any related documents.
(b) None of the provisions hereof shall be construed so as to require Collateral Agent, the Escrow Agent to expend Indenture Trustee, the Owner Trustee, the Transferor, JPMCB or risk any other Beneficiary of the Issuing Entity or any of its own funds their respective officers, directors, employees, incorporators or otherwise incur agents will have any liability in with respect to this Asset Pool One Supplement, and recourse may be had solely to the performance of its duties Collateral pledged to secure the Asset Pool One Notes under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)this Asset Pool One Supplement.
(c) If it becomes illegal It is expressly understood and agreed by the parties hereto that (a) this Asset Pool One Supplement is executed and delivered by Wilmington Trust Company (“WTC”), not individually or impossible for the Escrow Holder to carry out any personally but solely as Owner Trustee of the provisions hereofTrust, in the Escrow Agent shall incur no liability as a consequence exercise of the enforceability of lack thereof of any agreements referred to herein.
powers and authority conferred and vested in it, (db) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights each of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming representations, undertakings and having jurisdiction agreements herein made on the part of the parties Trust is made and the money involved herein intended not as personal representations, undertakings and affected hereby; or
(ii) all differences have been adjudicated agreements by agreement WTC but is made and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief intended for the purpose of having binding only the respective rights Trust, (c) nothing herein contained shall be construed as creating any liability on WTC, individually or personally, to perform any covenant either expressed or implied contained herein of the claimants adjudicatedTrust, all such liability, if any, being expressly waived by the parties hereto and deposit with by any Person claiming by, through or under the court all documents parties hereto, (d) WTC has not verified and property held hereundermade no investigation as to the accuracy or completeness of any representations and warranties made by the Trust in this Asset Pool One Supplement and (e) under no circumstances shall WTC be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against representation, warranty or covenant made or undertaken by the interpled funds and shall constitute a lien thereonTrust under this Asset Pool One Supplement or any other related documents.
Appears in 2 contracts
Sources: Asset Pool One Supplement (Jpmorgan Chase Bank, National Association), Asset Pool Supplement
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waivertelegram, consent, receipt electronic communication or other paper or document believed by the Escrow Holder delivered to it and that in good faith it reasonably believes to be genuine and that has been signed or sent by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the Any electronically signed document it purports delivered via email from a person purporting to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, a Responsible Officer and believed by the Escrow Holder to be genuine and Collateral Custodian in good faith to have been transmitted received from such Responsible Officer shall be considered signed or executed by such Responsible Officer on behalf of the proper party or partiesapplicable Person. The Escrow Holder Collateral Custodian shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature believed by the Collateral Custodian in good faith to have been received from such Responsible Officer and shall be entitled to conclusively rely on any such electronic signature without any liability with respect to thereto. The Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any good faith action taken designated officer of the Administrative Agent or allowed by it hereunder(b) the verbal instructions of the Administrative Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the grossly negligent performance of its duties in taking and retaining custody of the Collateral Asset Files.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action not expressly provided for hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between the undersigned Maturity Date or any person the continuance of an Event of Default, request instructions from the Servicer and may, after the occurrence of the Maturity Date or persons named in these Instructionsthe continuance of an Event of Default, request instructions from the Administrative Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Administrative Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Administrative Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) In the rights absence of bad faith on the part of the adverse claimants Collateral Custodian, the Collateral Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Collateral Custodian, reasonably believed by the Collateral Custodian to be genuine and to have been finally adjudicated signed or presented by the proper party or parties and conforming to the requirements of this Agreement; but in the case of a court request, instruction, document or certificate which by arbitration as set forth below assuming any provision hereof is specifically required to be furnished to the Collateral Custodian, the Collateral Custodian shall be under a duty to examine the same in accordance with the requirements of this Agreement to determine that they conform on their face to the form required by such provision. For avoidance of doubt, Collateral Custodian may rely conclusively on certificates of a Responsible Officer delivered by the Servicer. The Collateral Custodian shall not be liable for any action taken by it in good faith and having jurisdiction reasonably believed by it to be within the discretion or powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed hereunder, or omitted to be taken by it by reason of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all lack of the persons interesteddirection or instruction required hereby for such action.
(iiij) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights Each of the claimants adjudicatedprotections, reliances, indemnities and deposit with immunities offered to the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Collateral Administrator under Article XII hereunder shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 2 contracts
Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund)
Limitations on Liability. (a) It is understood Notwithstanding anything to the contrary contained in this Agreement:
(i) no indemnification payments will be made by or on behalf of an Indemnifying Party in respect of any breaches of representations and agreed that warranties made by such party, as applicable, under this Agreement (other than with respect to Seller Fundamental Representations) until the Escrow Holder shall incur no Liability aggregate amount of Losses for which such Indemnifying Party would (except but for acts this clause) be liable thereunder exceeds 1% of gross negligence or willful misconductthe Initial Purchase Price, in which event the Indemnifying Party will be liable for all Losses from the first dollar;
(ii) the aggregate total amount for which an Indemnifying Party will be liable to indemnify and be under no obligation hold harmless the Indemnified Parties with respect to take any steps or action (whether by commencement breaches of legal proceedings or otherwise) to insure that any funds are actually received representations and warranties made by the Escrow HolderIndemnifying Party under this Agreement (other than with respect to Seller Fundamental Representations) will not exceed 10% of the Initial Purchase Price;
(iii) the aggregate total amount for which an Indemnifying Party will be liable to indemnify and hold harmless the Indemnified Parties under this Agreement will not exceed the Initial Purchase Price; and
(iv) any indemnity provided hereunder shall be so applied as to avoid any double counting and no Indemnified Party shall be entitled to obtain indemnification more than once for the same matter or Losses.
(b) None An Indemnified Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreement of the provisions hereof shall Indemnifying Party contained in this Agreement will not be construed so as to require affected or deemed waived by reason of the Escrow Agent to expend or risk any of fact that the Indemnified Party, based solely upon its own funds investigation and without regard to any information provided by the Indemnifying Party, knew or otherwise incur should have known that any representation or warranty might be inaccurate or that the Indemnifying Party filed to comply with any agreement or covenant. The limitations on liability set forth in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder this Section 8.5 shall not be required apply to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability Losses resulting from fraud with respect to any good faith action taken breach of any representation or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence warranty or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult breach with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or respect to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holdercovenant, in its discretion, may file suit each case as contained in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonthis Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ariad Pharmaceuticals Inc), Share Purchase Agreement (Ariad Pharmaceuticals Inc)
Limitations on Liability. Any indemnity as referred to in Section 9.1 for breach of a Covenantor Warranty shall be such as to place the relevant Investor in the same position as it would have been in had there not been any breach of the Covenantor Warranty under which such Investor is to be indemnified. Further, the Parties expressly agree that (i) the maximum aggregate liability of the Indemnifying Parties under this Agreement (a) It is understood with respect to all Losses incurred by GS, its Affiliates and agreed that the Escrow Holder respective officers, directors, agents and employees of GS and its Affiliates (each acting in its capacity as an officer, director, agent or employee of GS or any of its Affiliates) for breach of any Covenantor Warranty shall incur no Liability (except for acts of gross negligence or willful misconduct) not exceed the GS Consideration and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None with respect to all Losses for breach of any Covenantor Warranty incurred by Mandra, its Affiliates and the provisions hereof shall be construed so respective officers, directors, agents and employees of Mandra and its Affiliates (each acting in its capacity as to require the Escrow Agent to expend an officer, director, agent or risk employee of Mandra or any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(cAffiliates) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by exceed the undersigned or any of them, unless Mandra Consideration; (ii) the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Indemnifying Party shall not be liable for breach of any error Covenantor Warranty in respect of any individual claim (or judgment a series of claims arising from substantially identical facts or for act done circumstances) where the liability agreed or step taken determined (disregarding the provisions of this Section 9.2(ii)) in respect of any such claim or omitted by it in good faith or for any mistake or fact or law (except for acts series of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewithclaims does not exceed US$100,000, and where the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel liability agreed or determined in the event respect of any dispute such claim or questions as series of claims exceeds US$100,000, the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and Indemnifying Party shall be fully protected in acting in accordance with liable for the opinion amount of the claim or series of claims as agreed or determined; and instructions of counsel. Any fees or costs so incurred shall be borne by (iii) the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder Indemnifying Party shall not be or become liable for damages breach of any Covenantor Warranty in respect of any claim where the aggregate amount of all claims for which the Indemnifying Party would otherwise be liable for breach of any Covenantor Warranty (disregarding the provisions of this Section 9.2(iii)) does not exceed US$1,000,000, and where the amount agreed or interest determined in respect of all claims referred to in this Section 9.2(iii) exceeds US$1,000,000, the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder Indemnifying Party shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief liable for the purpose aggregate amount of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonclaims as agreed or determined.
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (Aurora Mobile LTD)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2018-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2018-B), Trust Agreement (Ford Credit Auto Lease Trust 2018-B)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2024-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2024-A), Trust Agreement (Ford Credit Auto Lease Trust 2024-A)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2020-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2020-B), Trust Agreement (Ford Credit Auto Lease Trust 2020-B)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2021-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2021-A), Trust Agreement (Ford Credit Auto Lease Trust 2021-A)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the grossly negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between an Event of Default or the undersigned Facility Termination Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or any person or persons named in these Instructionsthe Facility Termination Date, request instructions from the Facility Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Facility Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Facility Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC), Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass C( - ) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Third Amended and Restated Indenture Supplement (Discover Card Master Trust I), Execution Note Trust (Discover Card Master Trust I)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2017-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2017-A), Trust Agreement (Ford Credit Auto Lease Two LLC)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2025-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2025-B), Trust Agreement (Ford Credit Auto Lease Trust 2025-B)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2025-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2025-A), Trust Agreement (Ford Credit Auto Lease Trust 2025-A)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass A(2022-3) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Indenture Supplement (Discover Card Master Trust I), Indenture Supplement
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2022-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2022-A), Trust Agreement (Ford Credit Auto Lease Trust 2022-A)
Limitations on Liability. (a1) It is understood Neither the Liquidity Provider nor any of its officers, employees, directors or Affiliates shall be liable or responsible for: (i) the use which may be made of the Advances or any acts or omissions of the Borrower or any beneficiary or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Liquidity Provider against delivery of a Notice of Borrowing and agreed other documents which do not comply with the terms hereof; provided, however, that the Escrow Holder Borrower shall incur no Liability (except for acts have a claim against the Liquidity Provider, and the Liquidity Provider shall be liable to the Borrower, to the extent of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received damages suffered by the Escrow HolderBorrower which were the result of (A) the Liquidity Provider's willful misconduct or negligence in determining whether documents presented hereunder comply with the terms hereof, or (B) any breach by the Liquidity Provider of any of the terms of this Agreement, including, but not limited to, the Liquidity Provider's failure to make lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing strictly complying with the terms and conditions hereof.
(b2) None of Neither the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk Liquidity Provider nor any of its own funds officers, employees, directors or otherwise incur any liability in the performance of its duties under these Instructions and it Affiliates shall be under no obligation to make liable or responsible in any payment except out of the funds received by it respect for (after deduction of its fees and expenses).
(ci) If it becomes illegal any error, omission, interruption or impossible for the Escrow Holder to carry out any of the provisions hereofdelay in transmission, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof dispatch or delivery of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take message or be bound by notice advice, however transmitted, in connection with this Agreement or any Notice of default of any personBorrowing delivered hereunder, or to take (ii) any action with respect to such default is given to Escrow Holder by the undersigned action, inaction or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not omission which may be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith faith, absent willful misconduct or for any mistake or fact or law negligence (except for acts in which event the extent of gross negligence or willful misconductthe Liquidity Provider's potential liability to the Borrower shall be limited as set forth in the immediately preceding paragraph), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructionswith this Agreement or any Notice of Borrowing.
(g3) The Escrow Holder may consult with legal counsel Notwithstanding anything contained herein to the contrary, it is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Subordination Agent in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights exercise of the adverse claimants have been finally adjudicated powers and authority conferred and vested in a court or by arbitration as set forth below assuming and having jurisdiction it under the Intercreditor Agreement, (b) each of the parties representations, undertakings and agreements herein made on the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all part of the persons interested.
(iii) In the event of such disagreementSubordination Agent is made and intended not as personal representations, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Subordination Agent as Borrower and (c) under no circumstances shall Wilmington Trust Company be personally liable for the payment of having the respective rights any indebtedness or expenses of the claimants adjudicatedBorrower or be liable for the breach or failure of any obligation, and deposit with representation, warranty or covenant made or undertaken by the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against Borrower under this Agreement or the interpled funds and shall constitute a lien thereonother related documents.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ata Holdings Corp), Revolving Credit Agreement (Ata Holdings Corp)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2017-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2017-B), Trust Agreement (Ford Credit Auto Lease Trust 2017-B)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Indenture is executed and delivered by Chase Card Funding not individually or personally but solely as Beneficiary, in the Escrow Holder shall incur no Liability exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by Chase Card Funding but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on Chase Card Funding individually or willful misconductpersonally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to this Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will Chase USA or Chase Card Funding be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Indenture or any related documents.
(b) None of the provisions hereof shall be construed so as to require Indenture Trustee, the Escrow Agent to expend Owner Trustee, Chase USA, Chase Card Funding or risk any other beneficiary of the Issuing Entity or any of its own funds their respective officers, directors, employers or otherwise incur agents will have any liability with respect to this Indenture, and recourse of any Noteholder may be had solely to the Collateral designated for inclusion in Asset Pool One and pledged to secure the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)applicable Notes.
(c) If it becomes illegal It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust Company (“WTC”), not individually or impossible for the Escrow Holder to carry out any personally but solely as Owner Trustee of the provisions hereofIssuing Entity, in the Escrow Agent shall incur no liability as a consequence exercise of the enforceability of lack thereof of any agreements referred to herein.
powers and authority conferred and vested in it, (db) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights each of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming representations, undertakings and having jurisdiction agreements herein made on the part of the parties Issuing Entity is made and the money involved herein intended not as personal representations, undertakings and affected hereby; or
(ii) all differences have been adjudicated agreements by agreement WTC but is made and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief intended for the purpose of having binding only the respective rights Issuing Entity, (c) nothing herein contained shall be construed as creating any liability on WTC, individually or personally, to perform any covenant either expressed or implied contained herein of the claimants adjudicatedIssuing Entity, all such liability, if any, being expressly waived by the parties hereto and deposit with by any Person claiming by, through or under the court all documents parties hereto, (d) WTC has not verified and property held hereundermade no investigation as to the accuracy or completeness of any representations and warranties made by the Issuing Entity in this Indenture and (e) under no circumstances shall WTC be personally liable for the payment of any indebtedness or expenses of the Issuing Entity or be liable for the breach or failure of any obligation, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against representation, warranty or covenant made or undertaken by the interpled funds and shall constitute a lien thereonIssuing Entity under this Indenture or any other related documents.
Appears in 2 contracts
Sources: Indenture (Chase Card Funding LLC), Indenture (Chase Issuance Trust)
Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability liability (except for acts of gross negligence or willful misconductmisconduct by it or any other Indemnified Parties) and be under no obligation to take any steps or action actions (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent Holder to expend or risk any of its own funds or otherwise incur any liability (except for customary expenses) in the performance of its duties under these Instructions this Agreement and it shall be under no obligation to make any payment from the Escrow Account except out of the funds received by it (after deduction of its fees and expenses)it.
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent Holder shall incur no liability as a consequence of the enforceability of or lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document reasonably believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ Executive or the BankCompany, and reasonably believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(fe) The Escrow Holder shall not be liable for any error or of judgment or for any act done or step taken or omitted by it in good faith or for any mistake or of fact or law in connection herewith (except except, in each case, for any acts of gross negligence or willful misconductmisconduct by it and the other Indemnified Parties), or for anything which it may do or refrain from doing except as otherwise provided in connection herewiththis Agreement, and the Escrow Holder shall have no duties to anyone except those signing these Instructionsthe parties hereto.
(gf) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as to the interpretation or construction of these Instructions this Agreement or the Escrow Holder’s 's duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories parties hereto, other than the Escrow Holder.
(hg) In the event of any disagreement between the undersigned parties hereto or any person or persons named in these Instructionsthis Agreement, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled entitled, at its option option, to refuse to comply with any such claims or demands, demands for so longs long as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned parties hereto or any of them, or to any person named in these Instructionsthis Agreement, for its the Escrow Holder's refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i1) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii2) all differences have been adjudicated resolved by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.; or
(iii3) In in the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred by the Escrow Holder in such action and said costs and fees shall be payable against included in the interpled funds and shall constitute a lien thereonjudgment of any such action.
Appears in 2 contracts
Sources: Escrow Agreement (Emachines Inc /De/), Escrow Agreement (Emachines Inc /De/)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2020-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2020-A), Trust Agreement (Ford Credit Auto Lease Trust 2020-A)
Limitations on Liability. (a) It is understood Neither this Agreement, the Assignment, nor anything to the contrary in the Lease shall, prior to Agent’s acquisition of Landlord’s interest in and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None possession of the provisions hereof Property, operate to give rise to or create any responsibility or liability for the control, care, management or repair of the Property upon Agent, or impose responsibility for the carrying out by Agent of any of the covenants, terms and conditions of the Lease, or constitute Agent a “mortgagee in possession,” nor shall said instrument operate to make Agent responsible or liable for any waste committed on the Property by any person whatsoever, or for any dangerous or defective condition of the Property, or for any negligence in the management, upkeep, repair or control of the Property resulting in loss, injury or death to any tenant, licensee, invoice, guest, employee, agent or stranger unless Agent becomes Landlord. In the event Agent becomes substitute landlord, Leader may assign its interest as substitute landlord without notice to, the consent of or the assumption of any liability to any other party hereto, so long as Landlord’s obligations under the Lease and this Agreement, are fully assumed by said Assignee, who shall be construed so as to require the Escrow deemed by Agent to expend be a commercially reasonable Assignee, provided however that Agent as successor Landlord shall be responsible for the performance of continuing obligations of Landlord existing after such acquisition. Anything herein or risk any of its own funds or otherwise in the Lease to the contrary notwithstanding, in the event that Agent shall acquire title to the leased premises, Agent shall have no obligation, nor incur any liability beyond the then-existing interest, if any, of Agent the leased premises and Tenant shall look exclusively to such interest of Agent in the performance leased premises for the payment and discharge of its duties any obligations imposed upon Agent hereunder or under these Instructions the Lease, and it Agent is hereby released and relieved of any other liability hereunder and under the Lease. As regards Agent, Tenant shall be under no obligation look solely to make the estate or interest owned by Agent in the leased premises and Tenant will not collect or attempt to collect any payment except judgment out of any other assets of Agent. By executing this Agreement, Landlord specifically acknowledges and agrees that nothing contained in this Section shall impair, limit, affect, lessen, abrogate or otherwise modify the funds received by it obligations of Landlord to Tenant under the Lease. Agent’s interest (after deduction of its fees and expenses).
(cas such term is used herein) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute leased premises shall include Agent’s equity in the leased premises, rents, protests and issues from the leased premises and proceeds from casualty or questions as condemnation affecting the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderleased premises.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Sublease (Conceptus Inc), Lease Agreement (Verisity LTD)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass A(2023-2) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Indenture Supplement (Discover Card Master Trust I), Indenture Supplement (Discover Card Master Trust I)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2023-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2023-A), Trust Agreement (Ford Credit Auto Lease Trust 2023-A)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass A( - ) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Third Amended and Restated Indenture Supplement (Discover Card Master Trust I), Indenture Supplement (Discover Card Master Trust I)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2023-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2023-B), Trust Agreement (Ford Credit Auto Lease Trust 2023-B)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2019-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2019-A), Trust Agreement (Ford Credit Auto Lease Trust 2019-A)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and power under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2016-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by failures of mechanical, electronic or communication systems; the Escrow Holder to be signed by the proper party or parties. The Escrow Holder Owner Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Two LLC), Trust Agreement (Ford Credit Auto Lease Two LLC)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the grossly negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between an Event of Default or the undersigned Facility Termination Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or any person or persons named in these Instructionsthe Facility Termination Date, request instructions from the Facility Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Facility Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Facility Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2024-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2024-B), Trust Agreement (Ford Credit Auto Lease Trust 2024-B)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2019-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2019-B), Trust Agreement (Ford Credit Auto Lease Trust 2019-B)
Limitations on Liability. Notwithstanding anything to the contrary in this Agreement or any right or remedy available under any Law:
(a) It is understood An indemnified party shall have the right to payment by the indemnifying party under this Article VIII if and agreed that only if, and only to the Escrow Holder extent that, such indemnified party shall incur have incurred, (i) as to any particular claim, an indemnifiable Loss in excess of TEN THOUSAND DOLLARS ($10,000) and (ii) as to all claims under this Article VIII, indemnifiable Losses in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000) (the “Claims Threshold”) (in determining whether the Claims Threshold has been satisfied, only Losses exceeding the per claim threshold set forth in the foregoing clause (i) shall be included), in which case the indemnified party shall have a right to payment only to the extent of such excess. For the avoidance of doubt, RS&T shall not be entitled to aggregate for any purpose of this Section 8.04(a) any of the Losses for which UCC has no Liability liability under this Agreement.
(except b) No indemnifying party shall have any liability under or otherwise in connection with this Agreement or the transactions contemplated hereby in excess of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) in the aggregate.
(c) IN NO EVENT SHALL EITHER PARTY HERETO OR ANY OF ITS APPLICABLE AFFILIATES HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, INDIRECT, REMOTE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST PROFITS OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS.
(d) From and after the Closing, the sole and exclusive liability and responsibility of the Parties hereto (and their respective applicable Affiliates) under or in connection with the Acquired Assets, this Agreement and the transactions contemplated by this Agreement (including for acts any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason other than fraud), and the sole and exclusive remedy of such Persons with respect to any of the foregoing, shall be as set forth in this Article VIII and in Article V. For the avoidance of doubt, nothing in this Section 8.04 shall constitute a release or waiver of any claims or rights of any party under any Related Agreement.
(e) Notwithstanding anything to the contrary herein, (i) the limitations on liability set forth above shall not apply for any claim in favor of an indemnified Person relating to fraud, gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability (ii) with respect to any good faith obligation of UCC pursuant to this Agreement to cause or otherwise bring about any action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel its Affiliates in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne that such action is not taken by the signatories heretoapplicable Affiliate, RS&T shall not have any cause of action against such Affiliate of UCC other than the Escrow Holderas specifically provided in this Agreement.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Asset Transfer Agreement, Asset Transfer Agreement (GlyEco, Inc.)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2018-A Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2018-A), Trust Agreement (Ford Credit Auto Lease Trust 2018-A)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by Wilmington Trust Company (“WTC”), not individually or personally but solely as Owner Trustee under the Escrow Holder shall incur Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Owner Trustee and the Issuer is made and intended not as a personal representation, undertaking or agreement by WTC but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on WTC individually or personally, to perform any covenant either expressed or implied contained herein of the Owner Trustee or the Issuer, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) WTC has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Owner Trustee or the Trust in this Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderOwner Trustee or the Issuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing these Instructions.
(gsecure the Class C(2023-1) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Indenture Supplement (Discover Card Master Trust I), Indenture Supplement
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2021-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems, pandemics or epidemics; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2021-B), Trust Agreement (Ford Credit Auto Lease Trust 2021-B)
Limitations on Liability. (a) It is understood Notwithstanding any provision to the contrary in this Supplement or the Agreement to the contrary, indemnification payments and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other amounts described herein as payable by the Escrow HolderIssuer hereunder (including, without limitation, amounts payable pursuant to Section 9.05) shall be payable only from Available Issuer Funds (and, as a result, may be payable from any allocable Pledged Asset only if, to the extent that, and after such Pledged Asset shall have been distributed to the Issuer in accordance with the terms of the Agreement and the Supplements thereto). Unless and until sufficient Available Issuer Funds become available to pay any such amount in accordance with the immediately preceding sentence, such indemnification payments and other amounts shall not be due and payable until a year and a day after the Collection Date for the last then outstanding Series.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend members, managers, officers, employees, agents, stockholders, holders of limited liability company interests, officers or risk any directors of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it Issuer or the Master Servicer, past, present or future, shall be under no obligation any liability to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofTrustee, the Escrow Agent shall incur no liability as a consequence of Series 1997-A Noteholders or any other Person for any action taken or for refraining from the enforceability of lack thereof taking of any agreements referred action in such capacities or otherwise pursuant to herein.
(d) The Escrow Holder shall not be required to take the Agreement or be bound by notice of default of this Supplement or for any personobligation or covenant under the Agreement or this Supplement, or to take any action it being understood that, with respect to such default is given the Issuer, the Agreement and this Supplement and the obligations created thereunder and hereunder shall be, to Escrow Holder by the undersigned fullest extent permitted under applicable law, solely the limited liability company or any corporate obligations of themthe Issuer or the Master Servicer, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesas applicable. The Escrow Holder will be entitled to treat as genuine Issuer, the Master Servicer and as any member, manager, officer, employee, agent, stockholder, holder of limited liability company interest, officer or director of or in the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ Issuer or the BankMaster Servicer, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it as applicable, may rely in good faith or for on any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event document of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, kind prima facie properly executed and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne submitted by the signatories hereto, any Person (other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned Issuer or any person Affiliate thereof, in the case of the Issuer, or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Master Servicer or any of themAffiliate thereof, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights case of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(iiMaster Servicer) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedrespecting any matters arising hereunder.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Wentworth J G & Co Inc)
Limitations on Liability. (a) It is understood Unless otherwise required by applicable law, we are only responsible for performing Services as expressly stated in this Agreement and agreed that will only be liable for material losses incurred by you to the Escrow Holder shall incur no Liability (except for acts of extent such losses directly result from our gross negligence or willful intentional misconduct. IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE), INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, OR THE INABILITY TO USE THE SERVICES, IRRESPECTIVE OF WHETHER WE HAVE OR HAVE NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF US FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUS E OF ACTION, SHALL BE THE LESSER OF THE AMOUNT YOU ORIGINALLY PAID FOR THE SERVICE, PRODUCTS OR MATERIALS OR $15,000. You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Services. You acknowledge that Service fees have been established in contemplation of: (A) these limitations on our liability, (B) Your agreement to review statements, confirmations, and be under no obligation notices promptly and to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof notify us immediately of any agreements referred discrepancies or problems; and (C) Your agreement to herein.
(d) The Escrow Holder shall assist us in any loss recovery effort. We will not be required obligated to take honor, in whole or be bound by notice of default of in part, any person, transaction or to take any action with respect to such default is given to Escrow Holder by the undersigned instruction or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall Communication which: • Is not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions any term or condition applicable to th e relevant Service or Account; • We have reason to believe may not be authorized by you or any third person whose authorization we believe is necessary or involves funds subject to hold, dispute, restriction or legal process we believe prevents their withdrawal, transfer or availability; • Would result in us exceeding any limitation of counsel. Any fees our net funds position established pursuant to present or costs so incurred shall be borne by the signatories heretofuture Federal Reserve guidelines; • Would violate any applicable law, other than the Escrow Holder.
(h) In the event rule or regulation, or any guidance or direc tive of any disagreement between the undersigned federal or any person or persons named state regulatory authority; • Is not in these Instructions, and accordance with any other personrequirement of our applicable policies, resulting in adverse claims and demands being made in connection with procedures or practices; or • We have reasonable cause not to honor for any money involved herein our or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedyour protection.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Commercial Digital Banking Agreement
Limitations on Liability. (a) It is understood The Trustee may execute any of the trusts or powers hereof and agreed that perform the Escrow Holder duties required of it hereunder by or through attorneys, agents, receivers or employees, and shall incur no Liability (be entitled to advice of counsel concerning all matters of trust and its duties hereunder and shall not be answerable for the conduct of the same if appointed by the Trustee with reasonable care, and the advice of any such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted hereunder in good faith and reliance thereon. The Trustee shall not be answerable for the exercise of any discretion or power under this Indenture or for anything whatsoever in connection with the trusts created hereby, except only for acts of its own gross negligence or willful misconduct) and . The Trustee shall not be under no obligation liable with respect to take any steps action taken or action (whether omitted to be taken by commencement of legal proceedings or otherwise) to insure that any funds are actually received by it in good faith in accordance with the Escrow Holder.
(b) None direction of the provisions hereof Owners of not less than 25% in aggregate principal amount of the Bonds Outstanding relating to the time, method and place of conducting any proceeding or any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. No provision of this Indenture shall be construed so as to require the Escrow Agent Trustee to expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties under these Instructions and it shall be under no obligation to make hereunder, or in the exercise of any payment except out of its rights or powers. The permissive rights of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder Trustee to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder do things enumerated in this Trust Indenture shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, construed as a duty unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesso specified herein. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Trustee shall not be liable for any error or of judgment or for act done or step taken or omitted by it made in good faith by a responsible officer, director or for employee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts. The Trustee shall be under no obligation to exercise any mistake of the rights or fact powers vested in it by this Trust Indenture at the request, order or law (except for acts direction of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and any of the Escrow Holder Owners pursuant to the provisions of this Trust Indenture unless such Owners shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest offered to the undersigned Trustee reasonable security or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable indemnity against the interpled funds costs, expenses and shall constitute a lien thereonliabilities which may be incurred therein or thereby.
Appears in 1 contract
Sources: First Supplemental Trust Indenture (Enron Corp/Or/)
Limitations on Liability. The Owner Trustee will not be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or gross negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty in Section 6.6 is not true and correct as of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act untilClosing Date:
(i) the rights Owner Trustee will not be liable for any action taken or not taken by it (A) according to the instructions of the adverse claimants have been finally adjudicated in Noteholders of a court or by arbitration as set forth below assuming and having jurisdiction majority of the parties Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the Certificateholders, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to gross negligence; provided, however, that the foregoing shall not relieve the Owner Trustee of its obligation to perform its duties under this Agreement;
(ii) the Owner Trustee will not be liable for indebtedness evidenced by or created under the Transaction Documents, including the principal of and interest or Make-Whole Payments on the Notes or amounts distributable to the Certificateholders;
(iii) the Owner Trustee will not be liable for and makes no representations as to (A) the validity or sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents or related documents, (E) the legality, validity and enforceability of the Certificates or the Notes, (F) the perfection and priority of a security interest created in the Receivables or the maintenance of any perfection and priority, (G) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the Certificateholders under this Agreement or (H) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by the Owner Trustee in Section 6.6);
(iv) the Owner Trustee will not have any responsibility or liability for or with respect to (A) the legality, validity and enforceability of any Receivable, (B) the existence and ownership of any Receivable, (C) the existence and contents of any device payment plan agreement or any computer or other record thereof, (D) the completeness of any device payment plan agreement or (E) the performance or enforcement of any device payment plan agreement;
(v) the Owner Trustee will not have any responsibility or liability for or with respect to the compliance by the Issuer with any covenant or the breach by the Issuer of any warranty or representation made under this Agreement or in any related document and the money involved herein accuracy of any such warranty or representation prior to the Owner Trustee's receipt of notice or other discovery of any noncompliance therewith or any breach thereof;
(vi) the Owner Trustee will not be liable for the default or misconduct of or acts or omissions of the Servicer, the Administrator, the Depositor, any Certificateholder, the Indenture Trustee or the Asset Representations Reviewer under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of the Owner Trustee and affected herebythe Owner Trustee shall have no obligations to perform any of the duties of or to monitor the performance by the Issuer, the Servicer, the Indenture Trustee, the Administrator, the Asset Representations Reviewer or any other Person; provided that, to the extent a Responsible Person of the Owner Trustee has actual knowledge of a breach of a representation, warranty or covenant of any party, the Owner Trustee shall notify such party of the breach;
(vii) the Owner Trustee shall not be accountable for (A) the use or application by the Depositor of the proceeds of the sale of the Notes, (B) the use or application by the Certificateholders of the Certificates or the proceeds of the Certificates, (C) the use or application by the holder of any Notes of any of the Notes or of the proceeds of such Notes, or (D) the use or application of any funds paid to the Servicer in accordance with the Transfer and Servicing Agreement.
(viii) the Owner Trustee will not be responsible or liable for special, punitive, indirect or consequential damages (including lost profit), even if the Owner Trustee has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(iiix) all differences have been adjudicated by agreement the Owner Trustee will not be responsible or liable for a failure or delay in the performance of its obligations under this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of war, terrorism, civil or military disturbances, nuclear catastrophes, fires, floods, earthquakes, storms, hurricanes or other natural catastrophes and interruptions, loss or failures of mechanical, electronic or communication systems; and the Escrow Holder has been notified thereof Owner Trustee will use reasonable efforts consistent with accepted practices in writing by all of the persons interestedbanking industry to resume performance as soon as practicable under the circumstances.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Agreement (Verizon ABS LLC)
Limitations on Liability. (a) It is understood and agreed that Except as provided for in Section 9.2(a)(ii), the right of the Parent Indemnitees to be indemnified from the Escrow Holder Fund pursuant to this Article IX shall incur no Liability (except for acts be the sole and exclusive remedy with respect to any breach of gross negligence any representation or willful misconduct) and be under no obligation to take warranty of the Company contained in, or any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other breach by the Escrow HolderCompany of, this Agreement. Except as provided for in Section 9.2(a)(ii), neither the Equityholders’ Representative nor any current or former stockholder, director, officer, employee, Affiliate or advisor of the Company, of its Subsidiaries or of any Equityholder shall have any Liability of any nature to the Parent Indemnitees with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement.
(b) None The right of the provisions hereof Equityholders to be indemnified pursuant to this Article IX shall be construed so as the sole and exclusive remedy with respect to require the Escrow Agent any breach of any representation or warranty of Parent or Merger Sub contained in, or any other breach by Parent or Merger Sub of, this Agreement. No current or former stockholder, director, officer, employee, Affiliate or advisor of Parent or of Merger Sub shall have any Liability of any nature to expend any Equityholder or risk any Affiliate of its own funds any Equityholder with respect to any breach of any representation or otherwise incur warranty contained in, or any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)other breach of, this Agreement.
(c) If it becomes illegal or impossible Without limiting the effect of any other limitation contained in this Article IX, the indemnification provided for in Section 9.2 shall not apply except to the Escrow Holder extent that the aggregate Damages against which any Indemnitee would otherwise be entitled to carry out be indemnified under this Article IX exceeds Four Million Dollars ($4,000,000.00), in which event Indemnitee shall, subject to the other limitations contained herein, be entitled to be indemnified only against the portion of such Damages in excess of such amount. For purposes of this Section, the Parent Indemnitees, on the one hand, and the Equityholders, on the other hand, shall be considered one “Indemnitee”. Nothing in this Section 9.3(c) will limit any remedy any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence Parent Indemnitees or any of the enforceability of lack thereof of Equityholders may have against any agreements referred to hereinPerson for any applicable Special Matter.
(d) The Escrow Holder shall not be required to take or be bound by notice of default Without limiting the effect of any personother limitation contained in this Article IX, or for purposes of computing the amount of any Damages incurred by any Indemnitee (the Parent Indemnitees, on the one hand, and the Equityholders, on the other hand, being considered one “Indemnitee” for purposes of this Section) under this Article IX, there shall be deducted (i) an amount equal to take the amount of any action with respect to such default is given to Escrow Holder Tax benefit actually realized by the undersigned Parent or any of themits Affiliates in connection with such Damages or any of the circumstances giving rise thereto; and (ii) an amount equal to the amount of any insurance proceeds, unless indemnification payments, contribution payments or reimbursements received or reasonably expected to be realized by Parent or any of its Affiliates in connection with such Damages or any of the Escrow Holder circumstances giving rise thereto (it being understood that Indemnitee and any of its Affiliates shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements prior to seeking indemnification under this Article IX). The calculation of Damages shall not include losses arising because of a change after Closing in Law or accounting policy. To the extent that a claim for indemnification by the Parent Indemnitees hereunder relates to a Liability incurred by the Company and there is indemnified an accrual on the Company Financial Statements as of the Balance Sheet Date in a manner satisfactory to it against respect of such expense or liabilityLiability, then the determination of Damages in respect of such claim shall be net of such accrual.
(e) The Escrow Holder Without limiting the effect of any other limitation contained in this Article IX, the Parent Indemnitees shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished indemnification under this Article IX to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or extent that such indemnifiable event actually gave rise to an adjustment to the Bank, and believed by Per Share Merger Consideration made following the Escrow Holder Closing pursuant to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderSection 2.8.
(f) The Escrow Holder Nothing in this Section 9.3 shall not be liable limit any remedy the Parent Indemnitees or any of the Equityholders may have against any Person for any error actual fraud involving a knowing and intentional misrepresentation of a fact, or judgment or for act done or step taken a knowing and intentional omission of a fact, material to the transactions contemplated by this Agreement, made or omitted by it in good faith with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge or for any mistake negligent misrepresentation or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructionssimilar theory) under applicable tort laws.
(g) The Escrow Holder may consult with legal counsel in the event Upon any Indemnitee becoming aware of any dispute or questions claim as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunderto which indemnification may be sought by such Indemnitee pursuant to this Article IX, such Indemnitee shall utilize reasonable efforts, consistent with normal practices and the Escrow Holder shall incur no liability policies and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories heretogood commercial practice, other than the Escrow Holderto mitigate such Damages.
(h) In Notwithstanding anything to the event of any disagreement between the undersigned or any person or persons named contrary in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebythis Agreement, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder Parent Indemnitees shall not be or become liable for damages or interest entitled to the undersigned or any of them, or indemnification pursuant to this Article IX with respect to any person named in these InstructionsTax attributes (including, for its refusal to comply with such conflicting or adverse demands; without limitation, tax basis, tax credits and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(inet operating losses) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedany Group Company.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fa) The Escrow Holder 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) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the grossly negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files; provided that, the Collateral Custodian hereby agrees that any failure of the Collateral Custodian to produce an original promissory note satisfying the conditions described in clauses (a) and (b) of Section 18.7 shall constitute negligence.
(c) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(d) 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. USActive 31637433.35 -151-
(e) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(f) It is expressly agreed and acknowledged that the 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.
(g) The Escrow Holder may consult with legal counsel in the event of In case any dispute or questions reasonable question arises as the interpretation or construction of these Instructions or the Escrow Holder’s to its duties hereunder, the Collateral Custodian may, prior to the occurrence of a Facility Termination Event or the Facility Termination Date, request instructions from the Investment Manager and may, after the Escrow Holder shall incur no liability occurrence of a Facility Termination Event or the Facility Termination Date, request instructions from the Facility Agent, and shall be fully protected entitled at all times to refrain from taking any action unless it has received instructions from the Investment Manager or the Facility Agent, as applicable. The Collateral Custodian shall in acting all events have no liability, risk or cost for any action taken pursuant to and in accordance compliance with the opinion instruction of the Facility Agent. In no event shall the Collateral Custodian be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has been advised of the likelihood of such loss or damage and instructions regardless of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderform of action.
(h) In Each of the event of any disagreement between protections, reliances, indemnities and immunities offered to the undersigned or any person or persons named Collateral Agent in these Instructions, Section 11.7 and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder Section 11.8 shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest afforded to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedCollateral Custodian.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Limitations on Liability. (a) It is understood The obligations hereunder of the Principal Sellers, on the one hand, and agreed that Parent, on the Escrow Holder other hand, are independent of the obligations of the other hereunder and shall incur no Liability (except for acts not be subject to any right of gross negligence offset, counterclaim or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holderdeduction.
(b) None Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Section 6, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third parties with respect to the subject matter underlying such indemnification claim and the Indemnified Party shall assign any such rights to the Indemnifying Party, provided that such subrogation could not reasonably be expected to have an adverse effect on the business, affairs, customer or supplier relationships or prospects of the provisions hereof business of Parent and/or the Surviving Corporation. Notwithstanding the foregoing, an Indemnifying Party’s right to seek coverage from any subrogation with respect to insurance carriers shall not be construed so as subject to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability proviso in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)immediately preceding sentence.
(c) If it becomes illegal or impossible for For purposes of determining the Escrow Holder to carry out amount of any Losses, such amount shall be reduced, without duplication, by (a) the amount of any insurance proceeds (collectively, “Insurance Benefits”) received in cash in respect of the provisions hereof, Losses (net of (i) any deductible amounts and (ii) the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof net present value of any agreements referred reasonably probable increase in insurance premiums or other charges paid or to hereinbe paid resulting from such Losses and all costs and expenses incurred in recovering such proceeds from insurers), and the Indemnified Party agrees to use commercially reasonable efforts to seek such Insurance Benefits to the extent applicable and (b) any indemnification, contribution or other similar payment actually recovered by the Indemnified Party from any third party with respect thereto.
(d) The Escrow Holder In calculating any Loss there shall be deducted any reduction in Taxes payable or any Tax refund actually realized or received by the applicable Indemnified Party as a result of the recognition of such Loss in the tax year of the Loss or the succeeding taxable year, which Tax benefit shall be calculated on a with and without basis (i.e., with and without recognition of such Loss), which Tax benefits shall be reduced to take into account any Tax cost actually incurred by the Indemnified Party as a result of the receipt of indemnity payments hereunder. Any such amounts or benefits received by an Indemnified Party with respect to any Indemnity Claim after it has received an indemnity payment hereunder shall be promptly paid over to the Indemnifying Party; provided that the Indemnified Party shall not be required obligated to take pay over any such amount or be bound benefit in excess of the amount paid by notice of default of any person, or the Indemnifying Party to take any action the Indemnified Party with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilityclaim.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability Except with respect to claims based upon fraud or intentional misrepresentation and except for remedies that cannot be waived as a matter of legal requirements and injunctive and provisional relief, if the Closing occurs, this Section 6 shall be the sole and exclusive remedy for breach of, or inaccuracy in, any good faith action taken representation, warranty, or allowed by it hereundercovenant contained herein, or otherwise in respect of the Contemplated Transactions or any claim made against the Indemnifying Party that would otherwise be a breach of a representation or warranty of the Company in this Agreement.
(f) The Escrow Holder No parties to this Agreement shall not be liable have any liability to any of the other parties to this Agreement (including under this Section 6) for any error Losses that constitute special, exemplary, punitive or judgment consequential damages (including loss of profits or for act done or step taken or omitted by it diminution in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconductvalue), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with extent such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
Losses (i) the rights result from an award of the adverse claimants have been finally adjudicated damages in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
Third Party Claim, (ii) all differences have been adjudicated by agreement were probable or reasonably foreseeable and the Escrow Holder has been notified thereof in writing by all are a direct result of the persons interested.
related breach or alleged breach of this Agreement, or (iii) In arise out of or are related to a Party’s fraud or intentional misrepresentation. Notwithstanding anything to the event of such disagreementcontrary in this Section 6.5(f) to the contrary, nothing herein shall apply to the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for Sellers’ Representative’s rights to indemnification from the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonSellers pursuant to Section 4.19(c).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Portage Biotech Inc.)
Limitations on Liability. The Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other Transaction Document (a) It is understood and agreed that including the Escrow Holder Agreement). In furtherance of the foregoing, each Unitholder, by delivery of a Letter of Transmittal, and the Seller, by the execution of this Agreement, has designated and appointed the Representative as exclusive agent and attorney-in-fact for and on behalf of each Unitholder and the Seller, as applicable, with full power and authority in each of the Unitholders’ names and for the Seller, to give and receive notices and communications, to agree to, negotiate and enter into, on behalf of each such Unitholder and the Seller, as applicable, amendments, consents and waivers under this Agreement or any Transaction Document entered into by the Company or the Seller, as applicable, pursuant to the terms set forth herein and therein, to make and receive payments on behalf of the Unitholders and/or the Seller, as the case may be, pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the determination of the Final Consideration, the Earnout Consideration, the defense and/or settlement of any indemnification claims of any Evolent Indemnified Party pursuant to Article 13, to take all actions authorized by the Escrow Agreement, including defending or settling any claims thereunder and releasing and transferring any of the Escrow Funds to Buyer in accordance with the terms set forth therein, and all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing. The Company, the Seller, the Evolent Entities and the Escrow Agent shall incur no Liability be entitled to rely on the actions taken by the Representative without independent inquiry into the capacity of the Representative to so act. All actions, notices, communications and determinations by the Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Unitholders and/or the Seller, as applicable. Neither the Representative nor any of its officers, directors, employees, agents or representatives shall have any liability to the Company, the Surviving Company, the Seller, the Unitholders with respect to actions taken or omitted to be taken by the Representative in such capacity (or any of its officers, directors, employees, agents or representatives in connection therewith), except for acts of with respect to the Representative’s gross negligence or willful misconduct) . The Representative will at all times be entitled to rely on any directions received from the Majority Holders; provided, however, that the Representative shall not be required to follow any such direction, and shall be under no obligation to take any steps or action in its capacity as Representative based upon any such direction so long as such action is in accordance with the terms of this Agreement. The Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (whether by commencement in the absence of legal proceedings or otherwisebad faith on the part of the Representative) shall be entitled to insure that any funds are actually received conclusively rely on the opinions and advice of such Persons. The Representative (for itself and its officers, directors, employees, agents and representatives) shall be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Escrow Holder.
Representative in such capacity (b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds officers, directors, employees, agents or otherwise incur representatives in connection therewith), and to full indemnification against any loss, liability or expenses arising out of actions taken or omitted to be taken in the performance of its duties under these Instructions and it shall be under no obligation to make any payment capacity as Representative (except for those arising out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims, from the Unitholders and the Seller (including from funds paid to the Representative under this Agreement and/or otherwise received by it in its capacity as Representative, or for anything which it may do funds to be distributed to the Unitholders or refrain from doing the Seller under this Agreement at its direction, pursuant to or in connection herewithwith this Agreement (including under the Escrow Agreement)). In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, the Representative shall have the power and authority to set aside and retain additional funds paid to or received by it, or direct payment of additional funds to be paid to the Unitholders and the Escrow Holder shall have no duties Seller as Total Consideration pursuant to anyone except those signing these Instructions.
this Agreement at Closing or thereafter to satisfy such obligations (g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions including to establish such reserves as the interpretation Representative determines in good faith to be appropriate for such costs and expenses that are not then known or construction of these Instructions determinable). To the extent that the Representative Fund exceeds such expenses, disbursements or advances, the Escrow Holder’s duties hereunder, Representative shall distribute such excess amount to the Unitholders and the Escrow Holder shall incur no liability and shall be fully protected in acting Seller in accordance with the opinion and instructions Allocation Schedule. The relationship created herein is not to be construed as a joint venture or any form of counselpartnership between or among the Representative or any Unitholder or the Seller for any purpose of U.S. federal or state law, including federal or state income Tax purposes. Any fees Neither the Representative nor any of its Affiliates owes or costs so incurred shall be borne by the signatories hereto, deemed to have any fiduciary or other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or duty to any person named in these Instructions, for its refusal to comply with such conflicting Unitholder or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedSeller.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Purchase Agreement and Agreement and Plan of Merger (Evolent Health, Inc.)
Limitations on Liability. The Owner Trustee will not be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty in Section 6.6 is not true and correct as of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act untilClosing Date:
(i) the rights Owner Trustee will not be liable for any action taken or not taken by it according to the instructions of the adverse claimants have been finally adjudicated Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer;
(ii) the Owner Trustee will not be liable for indebtedness evidenced by or created under the Transaction Documents, including the principal of and interest on the Notes or amounts distributable to the holder of the Residual Interest;
(iii) the Owner Trustee will not be liable for (A) the validity or sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of a Receivable, (F) the perfection and priority of a security interest created by a Receivable in a court Financed Vehicle or by arbitration as set forth below assuming the maintenance of any perfection and having jurisdiction priority, (G) the sufficiency of the parties Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (H) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by the money involved herein Owner Trustee in Section 6.6);
(iv) the Owner Trustee will not be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of the Owner Trustee;
(v) the Owner Trustee will not be responsible or liable for special, indirect or consequential damages (including lost profit), even if the Indenture Trustee has been advised of the likelihood of the loss or damage and affected herebyregardless of the form of action; or
(iivi) all differences have been adjudicated by agreement the Owner Trustee will not be responsible or liable for a failure or delay in the performance of its obligations under this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of war, terrorism, civil or military disturbances, nuclear catastrophes, fires, floods, earthquakes, storms, hurricanes or other natural catastrophes and interruptions, loss or failures of mechanical, electronic or communication systems; the Escrow Holder has been notified thereof Owner Trustee will use reasonable efforts consistent with accepted practices in writing by all of the persons interestedbanking industry to resume performance as soon as practicable under the circumstances.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Agreement (Ford Credit Auto Receivables Two LLC)
Limitations on Liability. (a) It is understood Each Buyer Party and agreed each Seller Party acknowledge and agree that the Seller Representative, in its capacity as the Seller Representative, is a party to this Agreement, the Escrow Holder shall incur Agreement and the other Ancillary Documents solely to perform certain administrative functions in connection with the consummation of the Transactions. Accordingly, each Buyer Party and each Seller Party acknowledge and agree that the Seller Representative has no Liability (liability to, and will not be liable for any Costs of, any Party or any other Person in connection with any obligations of the Seller Representative under this Agreement, the Escrow Agreement, any other Ancillary Document or otherwise in connection with the Transactions, except for acts to the extent such Costs are proven to be the direct result of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received misconduct by the Escrow HolderSeller Representative in connection with the performance of its obligations hereunder or thereunder. Each Seller Party acknowledges and agrees that no Buyer Party will be responsible for any obligations of the Seller Representative (or any failure to comply with such obligations), including for any amounts relating to the Sellers’ Representative Costs.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in In the performance of its duties under these Instructions and it hereunder, the Seller Representative shall be under no obligation entitled to make (i) rely upon any payment except out of document or instrument reasonably believed to be genuine, accurate as to content and signed by any Seller Party or any other Party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the funds received by it (after deduction of its fees and expenses)provisions hereof has been duly authorized to do so.
(c) If it becomes illegal or impossible for Each Seller Party (i) agrees that all actions taken by the Escrow Holder to carry out any of the provisions hereofSeller Representative under this Agreement, the Escrow Agent Agreement, any other Ancillary Document or otherwise in connection with the Transactions shall incur no liability be binding upon such Seller Party and its successors as a consequence if expressly confirmed and ratified in writing by such Seller Party and (ii) waives any and all claims and defenses which may be available to contest, negate or disaffirm the action of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action Seller Representative taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct)under this Agreement, or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunderAgreement, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made Ancillary Document or otherwise in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedTransactions.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Transaction Agreement (Blackstone Real Estate Income Trust, Inc.)
Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderTHE MARKS ARE LICENSED TO LICENSEE "AS IS." TO THE EXTENT PERMITTED BY LAW, LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EXPECTED OR INTENDED RESULTS, AND NON-INFRINGEMENT.
(b) None of Licensor grants Licensee the provisions hereof right to make and/or file against a third party any demands, actions, claims, defenses, or legal or equitable proceedings, whatsoever (collectively “Claims) relating to the Marks. Licensee agrees to Notify Licensor regarding any such Claims, whatsoever, in order to permit Licensor the opportunity to join in any such Claims. Each party shall be construed so as to require the Escrow Agent to expend or risk any of responsible for its own funds or otherwise incur attorneys’ fees and the costs of any liability Claims made.
c) During any Term, in the performance event a party becomes aware of, or has knowledge of, third-party misuse of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofMarks, that party shall promptly Notify the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) other party, reasonably providing such other party with all available information regarding such Claim. The Escrow Holder shall not be required to take or be bound by notice of default of any personparties will work together on all decisions, settlement, or to take any action with respect proceedings relating to such default is given to Escrow Holder by the undersigned or any of themmisuse, unless the Escrow Holder is indemnified misuse and any resulting Claim arose from one party’s grossly negligent or intentional actions or omissions in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder which case the party directly causing the misuse and/or resulting Claim shall not be liable to any and shall indemnify the other party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law such
d) EXCEPT AS PERMITTED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY OF THE OTHER PARTY’S DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES, WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND COSTS. IF A DISAGREEMENT OR CLAIM BETWEEN THE PARTIES OR FROM A THIRD PARTY REGARDING THE SUBJECT MATTER OF THIS AGREEMENT IS RULED UPON IN A JURISDICTION THAT DOES NOT ACCEPT SUCH LIMITATIONS ON LIABILITY, EACH PARTY’S LIABILITY, IN FULL, SHALL NOT EXCEED ANY LICENSE FEES PAID, IF ANY, DURING THE TWO (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions2) MONTHS PRECEDING THE CLAIM ARISING.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trademark License Agreement
Limitations on Liability. (a) It is understood Notwithstanding any provision to the contrary in this Agreement, indemnification payments and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other amounts described herein as payable by the Escrow HolderIssuer hereunder, whether following demand, within a specified time period or otherwise shall only be payable from Available Issuer Funds (and, as a result, may be payable from any allocable Pledged Asset only if, to the extent that, and after such Pledged Asset shall have been distributed to the Issuer in accordance with the terms of the Indenture and the Series Supplement). Unless and until Available Issuer Funds become available to pay any such amount, such amount shall not be due and payable until a year and a day after the Collection Date for the last then outstanding Series.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend members, managers, officers, employees, agents, stockholders, holders of limited liability company interests, officers or risk any directors of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it Issuer or any such holders, past, present or future, shall be under no obligation any liability to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofTrustee, the Escrow Agent shall incur no liability as a consequence of Purchasers or any other Person for any action taken or for refraining from the enforceability of lack thereof taking of any agreements referred action in such capacities or otherwise pursuant to herein.
(d) The Escrow Holder shall not be required to take this Agreement or be bound by notice of default of for any personobligation or covenant under this Agreement, or to take any action it being understood that, with respect to such default is given the Issuer, this Agreement and the obligations created thereunder and hereunder shall be, to Escrow Holder by the undersigned or any fullest extent permitted under applicable law, solely the limited liability company obligations of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesIssuer. The Escrow Holder will be entitled to treat as genuine Issuer and as any member, manager, officer, employee, agent, stockholder, holder of limited liability company interest, officer or director of or in the document it purports to be any letterIssuer, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it may rely in good faith or for on any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event document of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, kind prima facie properly executed and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne submitted by the signatories hereto, any Person (other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned Issuer or any person or persons named in these Instructions, and Affiliate thereof) respecting any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held matters arising hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.. * * * *
Appears in 1 contract
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by Wilmington Trust Company (“WTC”), not individually or personally but solely as Owner Trustee under the Escrow Holder shall incur Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Owner Trustee and the Issuer is made and intended not as a personal representation, undertaking or agreement by WTC but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on WTC individually or personally, to perform any covenant either expressed or implied contained herein of the Owner Trustee or the Issuer, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) WTC has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Owner Trustee or the Issuer in this Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderOwner Trustee or the Issuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing these Instructions.
(gsecure the Class B(2023-1) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Indenture Supplement (Discover Card Master Trust I)
Limitations on Liability. 9.1 The liability of the Seller and the Purchaser in respect of Claims made or brought under this Agreement shall be limited as follows:
(a) It neither the Seller nor the Purchaser shall be liable to make payment for any Claim based upon a liability which is understood contingent unless and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.until such contingent liability becomes an actual liability;
(b) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the liability arises or is increased as a result of any legislative, legal or regulatory requirement not in force at the date of this Agreement, where such requirement has been made or issued outside the reasonable control of the Parties or has not been issued or made as a result of the breach of this Agreement by either Party;
(c) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the matter giving rise to such Claim has been made good or is otherwise compensated for without loss to the other Party;
(d) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the same loss under such Claim has been recovered by the Seller or Purchaser (as applicable) under any provision of this Agreement or any other Transaction Document and accordingly the Seller or the Purchaser (as applicable) may only recover once in respect of the same loss;
(e) the Seller and the Purchaser shall only be liable in respect of a Claim if and to the extent that such Claim is admitted by the relevant party, the subject of an arbitral award or proven in a court of competent jurisdiction;
(f) any payment made by the Seller or any other person in respect of any Claim shall be deemed to be a reduction of the Purchase Price; and
(g) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the matter giving rise to such Claim has been carried out with the express consent of the Parties. None of the provisions hereof limitations in this sub-clause 9.1 shall apply to the extent that any breach by a party of its obligations under this Agreement is caused by fraud, wilful default or wilful concealment or gross negligence.
9.2 Other than as expressly set out in this Agreement (including, for the avoidance of doubt the payment of the Consideration in accordance with Clause 5 (Consideration)), neither the Seller nor the Purchaser shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation liable to make any payment except under this Agreement nor exercise any right of set-off or counterclaim against or otherwise withhold payment of any sums stated to be payable by the other hereunder or under any other agreement subsisting between them unless and until the liability of the Seller or the Purchaser (as applicable) has been agreed or adjudged payable in legal or arbitration proceedings.
9.3 The Seller hereby irrevocably and unconditionally undertakes that it shall not bring or conduct (in the absence of fraudulent or dishonest conduct or concealment) at any time any claims or actionable rights which it may have under contract, law or otherwise against the Company or any Company Group Member (or any of their respective directors, officers, employees or agents) arising out of or in connection with: (i) any matters relating to any period prior to Completion; or (ii) any matters for which it is or may be liable to the funds received by it (after deduction Purchaser arising out of its fees and expenses)or in connection with the Transaction.
9.4 The Parties hereby agree and acknowledge that the indemnification obligations specified in this Clause 9 is not a liability for defects (cayIba karşI tekeffül sorumluluğu) If it becomes illegal or impossible but the Seller’s and Purchaser’s respectively independent covenant and obligation of indemnity and the Seller’s and Purchaser’s respectively independent guarantee for the Escrow Holder to carry out any completeness and accuracy of all the provisions hereofrepresentations, covenants and warranties. Therefore, notice periods and statutes of limitations in connection with the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder for defects shall not be required applied for the independent covenants provided herein by the Seller. For the avoidance of doubt, the statute of limitation periods and the time periods applicable to take or be bound by notice the Purchaser’s duty to examine the object of default the sale and/or notify the Seller of any persondefect or breach set forth in the Turkish Code of Obligations and the Turkish Commercial Code and in particular in Articles 223 and 231 of the Turkish Code of Obligations and Article 25 of the Turkish Commercial Code, or to take as well as in any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder other laws and regulations shall not be liable applied to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed the independent covenants provided herein by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderSeller.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Limitations on Liability. (a) It is understood From and agreed that after the Effective Time, the right of a Parent Indemnitee to be indemnified from the Escrow Holder Account shall incur no Liability be the sole and exclusive remedy with respect to any breach of any representation, warranty, covenant or agreement (except other than an inaccuracy or breach of any Fundamental Representation for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by which the Escrow HolderAccount and the Right of Setoff shall be the sole and exclusive remedy), of the Company contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement. No current or former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of the Company shall have any Liability of any nature to a Parent Indemnitee with respect to any breach of any representation, warranty, covenant or agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement. No current or former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of Parent or Merger Sub shall have any Liability of any nature to any Equityholder Indemnitee with respect to any breach of any representation, warranty, covenant or agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement.
(b) None Without limiting the effect of any other limitation contained in this Article VII, the provisions hereof indemnification provided for in Section 7.2 shall not apply except to the extent that the aggregate Damages against which a Parent Indemnitee would otherwise be construed so as entitled to require be indemnified under this Article VII exceeds $*** (the Escrow Agent “Basket”), in which event the Parent Indemnitee shall, subject to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall other limitations contained herein, be under no obligation entitled to make any payment except out of be indemnified only against the funds received by it (after deduction of its fees and expenses)***; provided, however, the Basket ***.
(c) If it becomes illegal For purposes of computing the amount of any Damages incurred by a Parent Indemnitee under this Article VII, there shall be deducted an amount equal to the amount of any insurance proceeds actually received or impossible for reasonably expected to be received by the Escrow Holder to carry out Parent Indemnitee or any of its Affiliates in connection with such Damages or any of the provisions hereofcircumstances giving rise thereto (it being understood that the Parent Indemnitee and any of its Affiliates shall use commercially reasonable efforts to obtain such proceeds). To the extent that a claim for indemnification by a Parent Indemnitee hereunder relates to a Liability incurred by the Company and there is an accrual on the Current Balance Sheet in respect of such Liability which resulted in a deduction to the Closing Date Net Working Capital, then the Escrow Agent determination of Damages in respect of such claim shall incur no liability as a consequence be net of the enforceability of lack thereof of any agreements referred to hereinsuch accrual.
(d) The Nothing in this Section 7.3 shall limit, and neither the Escrow Holder Cap nor the Basket nor the limitations on the Right of Setoff set forth in Section 7.3(f) shall not be required to take or be bound by notice of default of apply to, any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned remedy Parent or any of themthe Equityholders may have against any Person for actual fraud involving a knowing and intentional misrepresentation of a fact material to the transactions contemplated by this Agreement made with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge, unless the Escrow Holder is indemnified in negligent misrepresentation or a manner satisfactory to it against such expense or liabilitysimilar theory) under applicable tort laws.
(e) The Escrow Holder In the event a claim for indemnification under this Article VII shall not have been finally determined in which the indemnified party is a Parent Indemnitee, the amount of the related Damages (after taking into account the limitations of Section 7.3(b)) shall be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by paid first from the Escrow Holder to be signed by Account and, following release of the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished Account to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, Equityholders pursuant to this Agreement and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability Agreement, thereafter, solely with respect to any good faith action taken or allowed by it hereunderthe indemnity claims relating to Fundamental Representations, against the Equityholders through the Right of Setoff pursuant to Section 7.3(f) to the extent not previously setoff.
(f) The If, following depletion or release of the Escrow Holder Account to the Equityholders, an amount has been claimed by a Parent Indemnitee pursuant to (i) Section 7.2(a) of this Agreement with respect to the *** (whether or not finally determined to be owed by the Equityholders) or (ii) Section *** of the Option Agreement with respect to the Fundamental Representations (as defined in the Option Agreement) (whether or not finally determined to be owed by the Company), Parent may setoff (the “Right of Setoff”) such amounts claimed against *** payable by Parent after such claim (if required to be paid pursuant to Section 2.9(e)), ***. Once a claim is finally determined in accordance with this Agreement, if the Damages relating to such claim are determined to be less than the amount setoff against the ***, Parent shall notify the Equityholders’ Representative. Thereafter, the Equityholders’ Representative shall prepare a Future Payment Allocation Schedule showing the portion of such amount to be paid to each Equityholder and deliver such Future Payment Allocation Schedule to Parent. Within five (5) Business Days following Parent’s receipt of such Future Payment Allocation Schedule, Parent shall pay to each Equityholder the portion of such amount set forth opposite such Equityholder’s name on such Future Payment Allocation Schedule in immediately available funds by check or by wire transfer to such bank account or accounts as may be specified on such Future Payment Allocation Schedule. For avoidance of doubt, Parent shall not be liable permitted under this Section 7.3(f) to seek a setoff for Damages against any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and Milestone Payment Amounts if such amounts have been previously paid to the Escrow Holder shall have no duties to anyone except those signing these InstructionsEquityholders.
(g) The Escrow Holder may consult with legal counsel Notwithstanding anything else in this Agreement to the event contrary, any pending claims for indemnification properly made by a Parent Indemnitee pursuant to Article VI of any dispute or questions the Option Agreement which have not been finally determined to be owed to such Parent Indemnitee as of the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and Closing Date shall be fully protected in acting treated as indemnifiable claims under this Article VII and upon final determination thereof in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne this Article VII, reimbursed by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named Company in these Instructions, accordance with and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest subject to the undersigned or any provisions of themthis Agreement, or including and subject in each case to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights limitations of the adverse claimants have been finally adjudicated in a court or by arbitration as liability set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Section 7.3.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Administrative Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderAdministrative Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of -130- its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files; provided that the Collateral Custodian hereby agrees that any failure of the Collateral Custodian to produce an original promissory note satisfying the conditions described in clauses (a) and (b) of Section 18.7 shall constitute gross negligence.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between an Event of Default or the undersigned Facility Termination Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or any person or persons named in these Instructionsthe Facility Termination Date, request instructions from the Administrative Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Administrative Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Administrative Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Indenture is executed and delivered by Chase Card Funding not individually or personally but solely as Beneficiary, in the Escrow Holder shall incur no Liability exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by Chase Card Funding but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on Chase Card Funding individually or willful misconductpersonally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to this Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will Chase USA or Chase Card Funding be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Indenture or any related documents.
(b) None of the provisions hereof shall be construed so as to require Indenture Trustee, the Escrow Agent to expend Owner Trustee, Chase USA, Chase Card Funding or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out other beneficiary of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Issuing Entity or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employers or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Indenture, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event recourse of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall Noteholder may be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest had solely to the undersigned or any of them, or Collateral designated for inclusion in Asset Pool One and pledged to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and secure the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedapplicable Notes.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Indenture (Chase Issuance Trust)
Limitations on Liability. (a) It is understood Notwithstanding any provision to the contrary in this Supplement or the Agreement to the contrary, indemnification payments and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other amounts described herein as payable by the Escrow HolderSeller hereunder (including, without limitation, amounts payable pursuant to Section 9.05) shall be payable only from Available Seller Funds (and, as a result, may be payable from any allocable Trust Asset only if, to the extent that, and after such Trust Asset shall have been distributed to the Seller in accordance with the terms of the Agreement and the Supplements thereto). Unless and until sufficient Available Seller Funds become available to pay any such amount in accordance with the immediately preceding sentence, such indemnification payments and other amounts shall not be due and payable until a year and a day after the Collection Date for the last then outstanding Series.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend members, managers, officers, employees, agents, stockholders, holders of limited liability company interests, officers or risk any directors of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it Seller or the Master Servicer, past, present or future, shall be under no obligation any liability to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofTrust, the Escrow Agent shall incur no liability as a consequence of Trustee, the enforceability of lack thereof Series 1997-1 Certificateholders or any other Person for any action taken or for refraining from the taking of any agreements referred action in such capacities or otherwise pursuant to herein.
(d) The Escrow Holder shall not be required to take the Agreement or be bound by notice of default of this Supplement or for any personobligation or covenant under the Agreement or this Supplement, or to take any action it being understood that, with respect to such default is given the Seller, the Agreement and this Supplement and the obligations created thereunder and hereunder shall be, to Escrow Holder by the undersigned fullest extent permitted under applicable law, solely the limited liability company or any corporate obligations of themthe Seller or the Master Servicer, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesas applicable. The Escrow Holder will be entitled to treat as genuine Seller, the Master Servicer and as any member, manager, officer, employee, agent, stockholder, holder of limited liability company interest, officer or director of or in the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ Seller or the BankMaster Servicer, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it as applicable, may rely in good faith or for on any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event document of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, kind prima facie properly executed and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne submitted by the signatories hereto, any Person (other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned Seller or any person Affiliate thereof, in the case of the Seller, or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Master Servicer or any of themAffiliate thereof, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights case of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(iiMaster Servicer) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedrespecting any matters arising hereunder.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wentworth J G & Co Inc)
Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend members, managers, officers, employees, agents, stockholders, holders of limited liability company interests or risk any directors of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it Trust Seller, the Company or the Trust Master Servicer or the Seller, the Issuer or the Issuer Master Servicer, past, present or future, shall be under no obligation any liability to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofTrust, the Escrow Agent shall incur no liability as a consequence of Issuer Trustee, the enforceability of lack thereof SSC Master Trust Trustee, the Agent, the Servicing Agent, any Lender, any Certificateholder, or any Noteholder or any other Person for any action taken or for refraining from the taking of any agreements referred action in such capacities or otherwise pursuant to herein.
(d) The Escrow Holder shall not be required to take this Agreement or be bound by notice of default of for any personobligation or covenant under this Agreement, or to take any action it being understood that, with respect to such default is given the Trust Seller, the Company and the Master Servicer, the Seller, the Issuer and the Issuer Master Servicer, this Agreement and the obligations created hereunder shall be, to Escrow Holder by the undersigned fullest extent permitted under applicable law, solely the limited liability company, limited partnership or any corporate obligations of themthe Trust Seller, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense Company or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticethe Trust Master Servicer, requestthe Seller, waiverthe Issuer or the Issuer Master Servicer, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesas applicable. The Escrow Holder will be entitled to treat as genuine Trust Seller, the Company, the Trust Master Servicer and as the document it purports to be any lettermember, papermanager, telexofficer, employee, agent, stockholder, or other document furnished holder of any limited liability company interest, or caused to be furnished to director of or in the Escrow Holder by R▇▇▇Trust Seller, B▇▇▇▇▇ H▇▇▇ the Company or the BankTrust Master Servicer, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it as applicable, may rely in good faith or for on any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event document of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, kind prima facie properly executed and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne submitted by the signatories hereto, any Person (other than the Escrow Holder.
(hTrust Seller or any Affiliate thereof, in the case of the Trust Seller, or the Company or any Affiliate thereof, in the case of the Company, or the Trust Master Servicer or any Affiliate thereof, in the case of the Trust Master Servicer) In respecting any matters arising hereunder. The Seller, the event Issuer, the Issuer Master Servicer and any member, manager, officer, employee, agent, stockholder, or holder of any disagreement between limited liability company interest, or director of or in the undersigned Seller, the Issuer or the Issuer Master Servicer, as applicable, may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (other than the Seller or any person Affiliate thereof, in the case of the Seller, or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Issuer or any Affiliate thereof, in the case of themthe Issuer, or to the Issuer Master Servicer or any person named Affiliate thereof, in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights case of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(iiIssuer Master Servicer) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedrespecting any matters arising hereunder.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Collateral Trust and Intercreditor Agreement (Wentworth J G & Co Inc)
Limitations on Liability. (a) It is understood Notwithstanding any other provision of this Agreement or of any applicable Law, no Person entitled to indemnity hereunder (each, an "Indemnitee") will be entitled to make a claim against a party required to provide indemnification under this Agreement (an "Indemnifying Party") for Indemnifiable Losses arising out of or relating to any inaccuracy of representations or warranties under Sections 13.2(a)(i) or 13.2(b)(i) until the aggregate amount of Indemnifiable Losses exceeds an amount equal to $500,000 (the "Indemnification Threshold"). In the event and agreed that to the Escrow Holder extent the aggregate amount of Indemnifiable Losses against an Indemnifying Party exceeds the Indemnification Threshold, such party shall incur no Liability (except be responsible for acts all Indemnifiable Losses from the first dollar of gross negligence or willful misconduct) and be under no obligation such Losses, but subject to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderIndemnification Cap.
(b) None Notwithstanding any other provision of this Agreement, the provisions hereof shall be construed so as indemnification obligations of Sellers under Section 13.2(a)(i) or the indemnification obligation of Purchaser under Section 13.2(b)(i) will not exceed an amount equal to require $15,000,000 (the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses"Indemnification Cap"), respectively.
(c) If it becomes illegal The obligation of Sellers to indemnify under Section 13.2(a)(i) and the obligation of Purchaser to indemnify under Section 13.2(b)(i) shall expire, with respect to any representation or impossible for the Escrow Holder to carry out any warranty of the provisions hereofrespective party, on the Escrow Agent date on which the survival of such representation or warranty shall incur no liability as expire in accordance with Section 13.1; provided that such representation or warranty shall survive the time it would otherwise terminate with respect to a consequence specific claim if notice of the enforceability inaccuracy or breach thereof giving rise to the right of lack thereof of any agreements referred indemnification shall have been given to hereinthe Indemnifying Party prior to the time such representation or warranty would otherwise terminate.
(d) The Escrow Holder No Indemnifying Party shall not be required liable to take or obligated to indemnify any Indemnitee hereunder for any consequential, punitive or exemplary damages; provided, however, to the extent that an Indemnitee is seeking indemnification hereunder for any Third Party Claim (other than any Third Party Claim brought by any Third Party Purchaser), the Indemnifying Party shall only be bound by notice of default of any personliable for consequential, punitive or exemplary damages to take any action with respect to the extent that the Third Party asserting such default is given to Escrow Holder by Third Party Claim seeks and recovers consequential, punitive or exemplary damages from the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilityIndemnitee.
(e) The Escrow Holder parties shall not be liable cooperate with each other with respect to resolving any party hereto in acting upon any written notice, request, waiver, consent, receipt claim or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to which one party is obligated to indemnify the other party hereunder, including by making commercially reasonable efforts to mitigate or resolve any good faith action taken such claim or allowed by it hereunderliability.
(f) The Notwithstanding anything to the contrary herein, Purchaser's right to indemnification with respect to Indemnifiable Losses relating to, resulting from or arising out of matters described in clause (i) of Section 13.2(a) shall be satisfied exclusively from the Indemnity Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, Amount and the Escrow Holder Purchaser shall have no duties right of set-off against any amounts due to anyone except those signing these InstructionsSellers under this Agreement or any Ancillary Documents as a result of any such Indemnifiable Losses. Purchaser acknowledges that its sole and exclusive remedy with respect to the matters described in clause (i) of Section 13.2(a) shall be pursuant to this Article XIII. Notwithstanding anything to the contrary herein, Purchaser may exercise a right of set-off as a result of any Indemnifiable Losses relating to, resulting from or arising out of matters described in clauses (ii) through (v) of Section 13.2(a); provided, however, Purchaser shall only be permitted to exercise such right of set-off only to the extent Purchaser first seeks recourse against the Indemnity Escrow Amount and has exhausted such Indemnity Escrow Amount in full.
(g) The Escrow Holder may consult with legal counsel in the event of Sellers shall have no obligation under Section 13.2(a) to indemnify any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other personIndemnitee for Indemnifiable Losses relating to, resulting in adverse claims and demands being made in connection with from or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest arising out of Excluded Liabilities to the undersigned or any of them, or extent (and only to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(iextent) the rights Indemnitee takes any identifiable action which directly causes the Excluded Liabilities to be a Liability of the adverse claimants Purchaser. Moreover, Seller shall have been finally adjudicated no obligation under Section 13.2(a) for up to $500,000 in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all aggregate reasonable costs and reasonable counsel fees incurred in such action expenses of the Indemnitee of defending a Third Party Claim or of otherwise resolving a Third Party Claim and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonIndemnifiable Losses associated therewith, relating to, resulting from or arising out of Excluded Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fleming Companies Inc /Ok/)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass B ( — ) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Execution Note Trust (Discover Card Master Trust I)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waivertelegram, consent, receipt electronic communication or other paper or document believed by the Escrow Holder delivered to it and that in good faith it reasonably believes to be signed genuine and that has been signed, sent or presented by the proper party or parties. The Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between an Event of Default or the undersigned Facility Termination Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or any person or persons named in these Instructionsthe Facility Termination Date, request instructions from the Facility Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Facility Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Facility Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp)
Limitations on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES PROVIDED BY SERTOTECH ON OR THROUGH THE SITES ARE PROVIDED "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS”, AND SERTOTECH HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, AND UNDERTAKINGS ARE HEREBY EXCLUDED Any material downloaded or otherwise obtained through the Sites is done at each Member's sole discretion and risk and each Member is solely responsible for any damage to SertoTech’s computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any Member from SertoTech or through or from the Sites shall create any warranty not expressly stated herein. The Sites may make available to Member services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall SertoTech and our affiliates be held liable for any such services or products. Each Member hereby agrees to indemnify and save SertoTech, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (aincluding legal costs on a full indemnity basis) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None which may arise from such Member's use of the provisions hereof shall be construed so as Sites or Services (including but not limited to require the Escrow Agent to expend display of such Member's information on the Sites) or risk any from your breach of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofterms and conditions of the Terms. Each Member hereby further agrees to indemnify and save SertoTech, the Escrow Agent shall incur no liability our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from Member's breach of any representations and warranties made by Member to SertoTech, including but not limited to those set forth in Section 5 hereunder. Each Member hereby further agrees to indemnify and save SertoTech, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a consequence of the enforceability of lack thereof result of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound claims asserted by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt Third Party Rights claimants or other paper third parties relating to products offered or document believed by displayed on the Escrow Holder to be signed by the proper party or partiesSites. The Escrow Holder will be entitled to treat as genuine Each Member hereby further agrees that SertoTech is not responsible and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with respect each Member. SertoTech reserves the right, at our own expense, to assume the exclusive defense and control of any good faith action taken or allowed matter otherwise subject to indemnification by it hereunder.
(f) The Escrow Holder you, in which event you shall cooperate with SertoTech in asserting any available defenses. SertoTech shall not be liable for any error special, direct, indirect, punitive, incidental or judgment consequential damages or any damages whatsoever (including but not limited to damages for act done loss of profits or step taken savings, business interruption, loss of information), whether in contract, negligence, tort, equity or omitted otherwise or any other damages resulting from any of the following : the use or the inability to use the Sites or Services; any defect in products, samples, data, information or services purchased or obtained from a Member or any other third party through the Sites; violation of Third Party Rights or claims or demands that Member's manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Sites may violate or may be asserted to violate Third Party Rights; or claims by it any party that they are entitled to defense or indemnification in good faith relation to assertions of rights, demands or claims by Third Party Rights claimants; unauthorized access by third parties to data or private information of any Member; statements or conduct of any Member of the Sites; or; any matters relating to Services however arising, including negligence. Notwithstanding any of the foregoing provisions, the aggregate liability of SertoTech, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each Member for all claims arising from the use of the Sites or Services during any calendar year shall be limited to the greater of the amount of fees the Member has paid to SertoTech or our affiliates during the calendar year and the maximum amount permitted in the applicable law. The preceding sentence shall not preclude the requirement by the Member to prove actual damages. All claims arising from the use of the Sites or Services must be filed within one (1) year from the date the cause of action arose or such longer period as prescribed under any applicable law governing this Term of Use. The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not SertoTech has been advised of or should have been aware of the possibility of any such losses arising. If the customer, for any mistake reason, gets in direct contact with one of Sertotech's service or fact or law (except for acts technology suppliers and is harmed outside of gross negligence or willful misconduct)Sertotech's scope of work, or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have Sertotech has no duties to anyone except those signing these Instructionsresponsibility.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood The Trustee may execute any of the trusts or powers hereof and agreed that perform the Escrow Holder duties required of it hereunder by or through attorneys, agents, receivers or employees, and shall incur no Liability (be entitled to advice of counsel concerning all matters of trust and its duty hereunder and shall not be liable for any action taken or omitted to be taken in good faith on the basis of such advice, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent or employee selected by it with reasonable care. The Trustee shall not be answerable for the exercise of any discretion or power under this Indenture or for anything whatsoever in connection with the trust created hereby, except only for acts of its own gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None The permissive rights of the provisions hereof Trustee to do things enumerated in this Indenture shall not be construed so as a duty, and the Trustee shall not be liable for any action reasonably taken or omitted to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received taken by it (after deduction of in good faith and reasonably believed by it to be within its fees and expenses)discretion or power conferred upon it hereby.
(c) If Whenever in the administration of this Indenture the Trustee shall deem it becomes illegal desirable that a matter be proved or impossible for established prior to taking, suffering or omitting any action hereunder or under the Escrow Holder to carry out any Agreement, the Trustee may, in the absence of bad faith on its part, rely upon a Certificate of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to hereinBorrower.
(d) The Escrow Holder shall not be required Prior to take or be bound by notice of default of any person, or to take taking any action under the Agreement or this Indenture, the Trustee shall be entitled to a certificate of an Authorized Borrower Representative and/or an opinion of counsel with respect to such default is given to Escrow Holder by the undersigned or any of themproposed action, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilitywhich certificate and/or opinion shall confirm that all conditions precedent, if any, have been satisfied.
(e) The Escrow Holder Trustee shall not be liable required to give any party hereto in acting upon any written notice, request, waiver, consent, receipt bond or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability surety with respect to any good faith action taken the performance of its duties or allowed by it hereunderthe exercise of its powers under this Indenture.
(f) The Escrow Holder Trustee shall not be liable bound to ascertain or inquire as to performance or observance of any covenants, conditions or other agreements on the part of the Borrower or the Issuer under the Agreement or this Indenture, as the case may be, except as specifically provided for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder herein. The Trustee shall have no obligation to perform any of the duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in of the event of any dispute or questions as the interpretation or construction of these Instructions Issuer or the Escrow Holder’s duties hereunder, and Borrower under the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees Agreement or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderthis Indenture.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It From and after the Effective Time, the Parent Indemnified Parties will be entitled to be indemnified pursuant to Section 9.2 up to an aggregate maximum amount of $2,000,000 (the “Cap”); such amounts to be paid: first from the Escrow Fund and second, in the event the Escrow Fund is exhausted, from (i) any Earnout Payments which become due and payable after the date the applicable claim is asserted and (iii) from the Shareholders, severally and not jointly and in accordance with each Shareholder’s pro rata share of the Merger Consideration, solely for claims based on actual fraud involving a knowing and intentional misrepresentation of a fact material to the transactions contemplated by this Agreement made with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge, negligent misrepresentation or a similar theory) under applicable tort laws. Notwithstanding the above, in no event shall any Shareholder be liable to Parent Indemnified Parties for Damages under clause (iii) hereinabove in excess of the Merger Consideration actually received by such Shareholder. Except as provided with respect to the Shareholders in the immediately preceding sentence, no current or former shareholder, director, officer, employee, affiliate or advisor of the Company shall have any Liability of any nature to Parent, the Surviving Corporation or any Affiliate of Parent or the Surviving Corporation with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement. From and after the Effective Time, the right of the Shareholders to be indemnified pursuant to this Article IX shall be the sole and exclusive remedy with respect to any breach of any representation or warranty of Parent or Merger Sub contained in, or any other breach by Parent or Merger Sub of, this Agreement. No current or former shareholder, director, officer, employee, affiliate or advisor of Parent or Merger Sub shall have any Liability of any nature to any Shareholder or any Affiliate of any Shareholder with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement.
(b) Without limiting the effect of any other limitation contained in this Article IX, the indemnification provided for in Section 9.2 shall not apply except to the extent that (i) the aggregate amount of Damages with respect to any specific claim or series of specifically related claims (a “Single Claim”) for which a Parent Indemnified Party is otherwise entitled to indemnification pursuant to Section 9.2 exceeds $2,500 (the “Minimum Claim Amount”) (it being understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Shareholders shall not be liable for any error or judgment or Damages with respect to any Single Claim in the event that such Damages are less than the Minimum Claim Amount) and (ii) the aggregate amount of Damages for act done or step taken or omitted by which the Parent Indemnified Parties are otherwise entitled to indemnification pursuant to Section 9.2 exceeds $150,000 (the “Deductible Amount”) (it in good faith or being understood and agreed that (A) any Single Claim for Damages of less than the Minimum Claim Amount shall be disregarded for purposes of calculating the Deductible Amount and (B) the Deductible Amount is intended as a deductible, and the Shareholders shall only be liable for any mistake Damages in excess of the Deductible Amount. Notwithstanding the foregoing provisions of this Section 9.3(b) (but subject to the limitations of Section 9.3(a)), any Damages with respect to an indemnification claim by a Parent Indemnified Party arising from any breach or fact inaccuracy of any representation and warranty in Sections 4.1, 4.2, 4.3, 4.5 (solely with respect to obtaining all requisite shareholder approval of this Agreement and the transactions contemplated hereunder under the OBCA), 4.9, 5.1, 5.2 and 5.3, arising out of or law (except for acts of gross negligence or willful misconductwith respect to any indemnification claim under Section 9.2(a)(ii) through and including Section 9.2(a)(vii), or for anything which it may do arising out of or refrain from doing in connection herewith, and with respect to any claim based on fraud will not be subject to or applied toward the Escrow Holder shall have no duties to anyone except those signing these InstructionsDeductible Amount or the Cap.
(gc) The Escrow Holder may consult with legal counsel in Without limiting the event effect of any dispute or questions as other limitation contained in this Article IX, for purposes of computing the interpretation or construction amount of these Instructions or the Escrow Holder’s duties hereunderany Damages incurred by an indemnified party hereunder under this Article IX, and the Escrow Holder shall incur no liability and there shall be fully protected deducted: (i) an amount equal to the amount of any tax benefit (assuming a combined federal and state corporate income Tax rate of 35%) reasonably expected to be realized by Parent or any of its Affiliates in acting connection with such Damages or any of the circumstances giving rise thereto; and (ii) an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or reasonably expected to be realized by Parent or any of its Affiliates in accordance connection with such Damages or any of the opinion circumstances giving rise thereto (it being understood that Parent and instructions any of counselits Affiliates shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements prior to seeking indemnification under this Article IX). Any fees The calculation of Damages shall not include losses arising because of a change after Closing in Law or costs so accounting principle. To the extent that a claim for indemnification by Parent or Merger Sub hereunder relates to a Liability incurred by the Company and there is an accrual on the Current Balance Sheet in respect of such Liability, then the determination of Damages in respect of such claim shall be borne by the signatories hereto, other than the Escrow Holdernet of such accrual.
(hd) In Without limiting the event effect of any disagreement between the undersigned or any person or persons named other limitation contained in these Instructionsthis Article IX, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder Parent shall not be or become liable for damages or interest entitled to indemnification under this Article IX to the undersigned or any extent that such right of them, or indemnification is addressed in the adjustments to any person named in these Instructions, for its refusal the Merger Consideration made following the Closing pursuant to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedSection 2.9.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Merger Agreement (Astronics Corp)
Limitations on Liability. (ajj) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Administrative Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderAdministrative Agent.
(fa) The Escrow Holder 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) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files; provided that the Collateral Custodian hereby agrees that any failure of the Collateral Custodian to produce an original promissory note satisfying the conditions described in clauses (a) and (b) of Section 18.7 shall constitute gross negligence.
(c) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(d) 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.
(e) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(f) It is expressly agreed and acknowledged that the 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.
(g) The Escrow Holder may consult with legal counsel in the event of In case any dispute or questions reasonable question arises as the interpretation or construction of these Instructions or the Escrow Holder’s to its duties hereunder, the Collateral Custodian may, prior to the occurrence of an Event of Default or the Facility Termination Date, request instructions from the Servicer and may, after the Escrow Holder shall incur no liability occurrence of an Event of Default or the Facility Termination Date, request instructions from the Administrative Agent, and shall be fully protected entitled at all times to refrain from taking any action unless it has received instructions from the Servicer or the Administrative Agent, as applicable. The Collateral Custodian shall in acting all events have no liability, risk or cost for any action taken pursuant to and in accordance compliance with the opinion instruction of the Administrative Agent. In no event shall the Collateral Custodian be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has been advised of the likelihood of such loss or damage and instructions regardless of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderform of action.
(h) In Each of the event of any disagreement between protections, reliances, indemnities and immunities offered to the undersigned or any person or persons named Collateral Agent in these Instructions, Section 11.7 and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder Section 11.8 shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest afforded to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedCollateral Custodian.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood and agreed The Members’ Representative shall have no liability to Parent, Merger Sub, the Company or any Member with respect to actions taken or omitted to be taken in its capacity as the Members’ Representative. The Members’ Representative shall at all times be entitled to rely on any directions provided by Members who, immediately prior to the Closing, held greater than 50% of the voting interests of the Company; provided, however, that the Escrow Holder Members’ Representative shall incur no Liability (except for acts of gross negligence or willful misconduct) not be required to follow any such direction, and shall be under no obligation to take any steps action in its capacity as the Members’ Representative, unless the Members’ Representative has been provided with other funds, security or action (whether by commencement indemnities which, in the sole determination of legal proceedings or otherwise) the Members’ Representative, are sufficient to insure that any funds are actually received protect the Members’ Representative against the costs, expenses and liabilities which may be incurred by the Escrow Holder.
Members’ Representative in responding to such direction or taking such action. The Members’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary or advisable in connection with exercising its powers and performing its function hereunder and (b) None in the absence of bad faith on the part of the provisions hereof Members’ Representative) shall be construed so entitled to conclusively rely on the opinions and advice of such Persons. The Members’ Representative shall be entitled to reimbursement for its costs and expenses in performing its duties as Members’ Representative under this Agreement and is authorized by the Members to require employ the Escrow Agent to expend or risk any Holdback Amount for such purpose, including for all reasonable expenses, disbursements and advances (including fees and disbursements of its own funds or otherwise incur any liability counsel, experts and other agents and consultants) incurred by the Members’ Representative in the performance of its duties under these Instructions and it capacity as Members’ Representative. The Members’ Representative shall be under no obligation entitled to make indemnification against any payment loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Members’ Representative (except for those arising out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good Members’ Representative’s bad faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and including the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action expenses of investigation and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereondefense of claims.
Appears in 1 contract
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Indenture is executed and delivered by Wachovia Card Receivables LLC not individually or personally but solely as Beneficiary, in the Escrow Holder shall incur no Liability exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by Wachovia Card Receivables LLC but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on Wachovia Card Receivables LLC individually or willful misconductpersonally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to this Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will Wachovia Card Receivables LLC be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Indenture or any related documents.
(b) None of the provisions hereof shall be construed so as to require Indenture Trustee, the Escrow Agent to expend Owner Trustee, Wachovia Card Receivables LLC or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out other beneficiary of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Issuing Entity or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employers or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Indenture, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event recourse of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall Noteholder may be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest had solely to the undersigned or any of them, or Receivables and pledged to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and secure the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedapplicable Notes.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It Notwithstanding any provisions regarding joint and several liability contained in this Agreement, any Other Document or in any agreements related thereto, but subject to the express terms and provisions of UK Security Documents, it is understood the intent of the parties hereto and agreed that thereto, and such parties hereby agree that, neither the Escrow Holder UK Borrower nor ▇▇▇▇ Roll shall incur no Liability (except be liable for acts any Obligations to the extent they do not constitute UK Obligations or the Term Loan, the present and future assets of gross negligence or willful misconduct) and the UK Borrower and/or Davy Roll shall not be under no obligation subject to take any steps Lien, claim or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderAgent or the Lenders to satisfy any Obligations to the extent they do not constitute UK Obligations or, to the extent applicable, the Term Loan, and neither the Agent nor the Lenders shall have any recourse under this Agreement or any Other Documents against either of the UK Borrower or Davy Roll or, except as expressly set forth in the UK Security Documents, their respective assets in respect of any Obligations to the extent they do not constitute UK Obligations or, to the extent applicable, the Term Loan. All amounts paid by the UK Borrower or Davy Roll and all value derived from their respective assets shall be applied to UK Obligations, or to the extent applicable, the Term Loan.
(b) None Notwithstanding any provisions regarding joint and several liability contained in this Agreement, any Other Document or in any agreements related thereto, it is the intent of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions parties hereto and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees thereto, and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofsuch parties hereby agree that, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Swedish Borrowers shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may Obligations to the extent they do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebynot constitute Swedish Obligations, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, present and in so doing future assets of the Escrow Holder Swedish Borrowers shall not be subject to any Lien, claim or become liable for damages action by the Agent or interest the Lenders to satisfy any Obligations to the undersigned extent they do not constitute Swedish Obligations and neither the Agent nor the Lenders shall have any recourse under this Agreement or any Other Documents against the Swedish Borrowers or their respective assets in respect of them, or any Obligations to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; the extent they do not constitute Swedish Obligations. All amounts paid by Swedish Borrowers and the Escrow Holder all value derived from their respective assets shall be entitled applied to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedSwedish Obligations.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Ampco Pittsburgh Corp)
Limitations on Liability. (ai) It is understood and agreed that Notwithstanding anything to the Escrow Holder shall incur contrary contained in this Agreement, no Liability (except for acts of gross negligence action or willful misconduct) and be under no obligation to take inaction by any steps Party or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds Affiliates shall be deemed to be a breach of this Agreement for any purpose hereunder, and no Indemnified Party shall have any claim or otherwise incur recourse against another Party with respect to such action or inaction, under this Section 7 or otherwise, if (x) the other Party or any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be Representatives was required to take or be bound by notice of default of any person, or not to take any such action with respect pursuant to the terms of this Agreement or applicable Law or (y) such default is given to Escrow Holder by the undersigned Party or any of them, unless its Representatives has directed or requested the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Party or any of them, its Representatives to take or to any person named in these Instructions, for its refusal to comply with not take such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; oraction.
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all The liability of the persons interestedService Provider for Losses of any kind whatsoever arising from or relating to any Service or under or in connection with this Agreement (whether for breach of contract, tort, negligence, misrepresentation, breach of statutory duty, or otherwise) shall not exceed the aggregate amount of Charges paid and outstanding (whether disputed or otherwise), by the Service Recipient herein; provided that the foregoing limitation on liability shall not apply in the case of Losses suffered by the Service Recipient resulting from the fraud, fraudulent misrepresentation or wilful breach of the Service Provider.
(iii) In For all purposes of this Section 7, the event “Losses” of an Indemnified Party shall be net of: (i) any recovery or benefit (including insurance and indemnification) payable to the Indemnified Party or any of its Affiliates (including, in the case of the Company, the UK Companies) in connection with the facts giving rise to the right of indemnification and, if the Indemnified Party or any of its Affiliates (including, in the case of the Company, the UK Companies) receives such recovery or benefit after receipt of payment from the Indemnifying Party, then the amount of such disagreementrecovery or benefit, net of reasonable expenses incurred in obtaining such recovery or benefit, shall be paid to the Indemnifying Party; and (ii) any Tax benefit available to the Indemnified Party or any of its Affiliates (including, in the case of the Company, the Escrow HolderUK Companies) arising in connection with the accrual, incurrence or payment of any such Losses.
(iv) Each Party shall, and shall cause its respective Affiliates to, take all reasonable steps to mitigate its Losses upon and after becoming aware of any event that could reasonably be expected to give rise to any Loss, and the Indemnified Party shall not be entitled to any payment, adjustment or indemnification more than once with respect to the same matter.
(v) None of the Parties shall have any liability under or in its discretionconnection with this Agreement (whether for breach of contract, may file suit in interpleader tort, negligence, misrepresentation, breach of statutory duty, or otherwise) for loss of business, contracts, revenue or profits, loss of goodwill or reputation, or for declaratory relief any punitive, incidental, consequential, special or indirect damages, nor for the purpose any form of having the respective rights liquidated damages, regardless of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in whether such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereondamages were foreseeable.
Appears in 1 contract
Sources: Uk Transition Services Agreement (Hanson Building Products LTD)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct, bad faith or grossly negligent performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files; provided that the Collateral Custodian hereby agrees that any failure of the Collateral Custodian to produce an original promissory note satisfying the conditions described in clauses (a) and (b) of Section 18.7 shall constitute gross negligence.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its commercially reasonable judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between an Event of Default or the undersigned Facility Termination Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or any person or persons named in these Instructionsthe Facility Termination Date, request instructions from the Facility Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Facility Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Facility Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Limitations on Liability. (a) It is understood The Indemnifying Parties will not be liable to the Indemnified Parties for indemnification under this ARTICLE X unless and agreed that until the Escrow Holder aggregate Losses for which they would otherwise be liable under this ARTICLE X exceed $250,000, at which point the Indemnifying Parties shall incur no Liability (except be liable for acts the aggregate Losses in excess of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder$125,000.
(b) None In no event shall the aggregate amount of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no indemnification obligation to make any payment except out of the funds received by it Indemnifying Parties pursuant to this ARTICLE X exceed (after deduction i) 15% of its fees the Closing Consideration, plus (ii) 15% of the FDA Acceptance Consideration Shares, but solely to the extent actually issued or determined to be issuable, plus (iii) 15% of each of the FDA Approval Consideration Shares and expenses)FDA Approval Cash Consideration, but in each case solely to the extent actually issued, paid, determined to be issuable or determined to be payable.
(c) If it becomes illegal Notwithstanding the foregoing to the contrary, each Stockholder’s aggregate liability with respect to a claim for indemnification under this ARTICLE X shall not exceed (i) 15% of the Closing Consideration actually issued or impossible determined to be issuable to such Stockholder, plus (ii) 15% of the FDA Acceptance Consideration Shares actually issued or determined to be issuable to such Stockholder, plus (iii) 15% of each of the FDA Approval Consideration Shares and FDA Approval Cash Consideration, but in each case solely to the extent actually issued, paid, determined to be issuable or determined to be payable to such Stockholder; provided that no Stockholder shall be liable for the Escrow Holder to carry out breach by any other Stockholder of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of representations or warranties made by any agreements referred other Stockholder pursuant to hereinARTICLE III or pursuant to any Stockholder Related Agreement.
(d) The Escrow Holder shall not be required Notwithstanding anything in this Agreement to take the contrary, Losses relating to any fraud, intentional misrepresentation or be bound by notice of default willful misconduct of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned party or any inaccuracy in or breach of themany of the Fundamental Representations shall neither be applied toward, unless nor limited by, the Escrow Holder is indemnified foregoing limitations in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder this Section 10.6; provided that no Stockholder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence the fraud, intentional misrepresentation or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event misconduct of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderStockholder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sorrento Therapeutics, Inc.)
Limitations on Liability. In no event shall the aggregate Liabilities of (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence Buyer or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) Sellers and the Agent under this Agreement exceed the Purchase Price. None of the provisions hereof Sellers, Buyer the Agent or the Non-Recourse Parties shall be construed so liable for any special, indirect, incidental, consequential, punitive, exemplary or similar damages of any kind whatsoever in any way due to, resulting from or arising in connection with this Agreement or the transactions contemplated hereby. The foregoing limitations of Liability shall not apply to (i) Liabilities arising from such Person’s fraud, (ii) indirect, incidental, or consequential damages or Liabilities that would be reasonably foreseeable to result from a breach of this Agreement under an objective standard, or (iii) Liabilities arising out of or relating to Buyer’s failure to comply with the Ombudsman Report. [SIGNATURE PAGE TO INTELLECTUAL PROPERTY ASSET PURCHASE AGREEMENT] Reference is made to that certain Asset Purchase Agreement, dated as of , 2018 (the “Purchase Agreement”), by and among (“Buyer”), The Bon-Ton Stores, Inc., a Delaware corporation (the “Company”), and each of the Company’s Subsidiaries party thereto (together with the Company, the “Assignors”). To the extent that any Assignor is unable or unwilling to require fully perform its obligations under the Escrow Agent Purchase Agreement to expend lawfully perfect the transfer of any Acquired Assets (as defined in the Purchase Agreement) from such Assignor to Buyer or risk any of its own funds designated subsidiaries (Buyer or otherwise incur such subsidiary, the “Assignee”) and any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal consent or impossible approval is required for the Escrow Holder transfer of such Acquired Assets in accordance with the Purchase Agreement, each Assignor hereby designates and appoints Buyer or its assigns or its duly authorized officer or agent as such Assignor’s agent and attorney-in-fact to carry out act for and in such Assignor’s behalf and instead of such Assignor, to execute and file any of the provisions hereofregistration, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, application or other document furnished or caused and to be furnished do all other lawfully permitted acts to the Escrow Holder by Rperfect such transfer of such Acquired Assets. THE BON-TON STORES INC. By: Name: Title: THE BON-TON DEPARTMENT STORES, INC. By: Name: Title: BON-TON DISTRIBUTION LLC By: Name: Title: ▇▇▇, B▇▇▇▇▇ H▇▇▇▇▇ or ▇▇▇▇▇ ▇▇, INC. By: Name: Title: MCRIL, LLC By: Name: Title: This Trademark Assignment Agreement (“Assignment”) is entered into this day of , 2018 (the Bank“Effective Date”) by and between , having a mailing address of (“Assignor”) and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
, having a mailing address of (f“Assignee”) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebycollectively, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested“Parties”).
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood Unless otherwise required by applicable law, we are only responsible for performing Services as expressly stated in this Agreement and agreed that will only be liable for material losses incurred by you to the Escrow Holder shall incur no Liability (except for acts of extent such losses directly result from our gross negligence or willful intentional misconduct. IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEE S, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE), INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAM AGES, WHETHE R IN ACTION UNDE R CONTRACT, NEGLIGE NCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, OR THE INABILITY TO USE THE SERVICES, IRRESPECTIVE OF WHETHE R WE HAVE OR HA VE NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGRE GATE LIABILITY OF US FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION, SHALL BE THE LESSER OF THE AM OUNT YOU ORIGINALLY PAID FOR THE SERVICE, PRODUCTS OR MATERIALS OR $15,000. You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Services. You acknowledge that Service fees have been established i n contemplation of: (A) these limitations on our liability, (B) Your agreement to review statements, confirmations, and be under no obligation notices promptly and to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof notify us immediately of any agreements referred discrepancies or problems; and (C) Your agreement to herein.
(d) The Escrow Holder shall assist us in any loss recovery effort. We will not be required obligated to take honor, in whole or be bound by notice of default of in part, any person, transaction or to take any action with respect to such default is given to Escrow Holder by the undersigned instruction or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall Communication which: • Is not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with any term or condition applicable to the opinion and instructions relevant Service or Account; • We have reason to believe may not be authorized by you or any third person whose authorization we believe is necessary or involves funds subject to hold, dispute, restriction or legal process we believe prevents their withdrawal, transfer or availability; • Would result in us exceeding any limitation of counsel. Any fees our net funds position established pursuant to present or costs so incurred shall be borne by the signatories heretofuture Federal Reserve guidelines; • Would violate any applicable law, other than the Escrow Holder.
(h) In the event rule or regulation, or any guidan ce or directive of any disagreement between the undersigned federal or any person or persons named state regulatory authority; • Is not in these Instructions, and accordance with any other personrequirement of our applicable policies, resulting in adverse claims and demands being made in connection with procedures or practices; or • We have reasonable cause not to honor for any money involved herein our or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedyour protection.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Digital Banking Agreement
Limitations on Liability. (a) It is understood Each of the Company and agreed Optionee agrees that, from and after the date hereof, except with respect to remedies that the Escrow Holder shall incur no Liability cannot be waived as a matter of law (except for acts of gross negligence or willful misconductincluding fraud) and injunctive and provisional relief (including specific performance), this Article VI shall be under no obligation the exclusive remedy with respect to take any steps breaches of the representations and warranties set forth in this Agreement. No current or action (whether by commencement former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of legal proceedings the Company shall have any Liability of any nature to an Optionee Indemnitee with respect to any breach of any representation, warranty, covenant or otherwise) agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement. No current or former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of Optionee shall have any Liability of any nature to insure that any funds are actually received by the Escrow HolderCompany Indemnitee with respect to any breach of any representation, warranty, covenant or agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement.
(b) None Without limiting the effect of any other limitation contained in this Article VI, the indemnification provided for in Section 6.2 shall not apply except to the extent that the aggregate Damages against which an Optionee Indemnitee would otherwise be entitled to be indemnified under this Article VI exceeds *** percent of the provisions hereof shall Indemnity Cap (the “Basket”), in which event the Optionee Indemnitee shall, subject to the other limitations contained herein, be construed so as entitled to require be indemnified only against the Escrow Agent to expend or risk any portion of its own funds or otherwise incur any liability such Damages in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out excess of the funds received by it (after deduction Basket; provided, however, the Basket shall not apply to any claims related to a breach of its fees and expenses)any Fundamental Representation.
(c) If it becomes illegal For purposes of computing the amount of any Damages incurred by an Optionee Indemnitee under this Article VI, there shall be deducted an amount equal to the amount of any insurance proceeds actually received or impossible for reasonably expected to be received by the Escrow Holder to carry out Optionee Indemnitee or any of its Affiliates in connection with such Damages or any of the provisions hereof, circumstances giving rise thereto (it being understood that the Escrow Agent Optionee Indemnitee and any of its Affiliates shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred use commercially reasonable efforts to hereinobtain such proceeds).
(d) The Escrow Holder Nothing in this Section 6.3 shall not be required limit, and neither the Indemnity Cap nor the Basket shall apply to, any remedy Optionee or the Company may have against any Person for actual fraud involving a knowing and intentional misrepresentation of a fact material to take the transactions contemplated by this Agreement made with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge, negligent misrepresentation or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilitysimilar theory) under applicable tort laws.
(e) The Escrow Holder Optionee shall have the right, exercisable by delivery of written notice to the Company delivered on or prior to the Closing Date, to setoff against the Closing Payment Amount (as defined in the Merger Agreement) an amount equal to the aggregate amount of all Damages relating to claims for indemnification made by an Optionee Indemnitee pursuant to this Article VI which have been finally determined to be owed to the Optionee Indemnitee pursuant to this Agreement but which have not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed been paid by the Escrow Holder Company as of the Closing Date. In addition, any pending claims for indemnification made by an Optionee Indemnitee pursuant to Article VI which have not been finally determined to be signed owed to such Optionee Indemnitee as of the Closing Date, subject in each case, for the avoidance of doubt, to all of the limitations on indemnification set forth in this Article VI, shall be treated as indemnifiable claims under the Merger Agreement and upon final determination thereof, reimbursed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine Company in accordance with and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished subject to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or provisions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, Merger Agreement and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
Agreement (g) The Escrow Holder may consult with legal counsel as defined in the event of any dispute or questions Merger Agreement), as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderapplicable.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. 10.1 The Purchaser acknowledges and agrees with the Seller (for itself and for the benefit of the Seller and its Affiliates and each of their respective directors, officers, employers, agents and advisers) that the Warranties are the only representations and warranties given by or on behalf of the Seller and on which the Purchaser may rely in entering into and performing this Agreement and that none of the Seller, any of its Affiliates (including any member of the Group) or any of their respective directors, officers, employees, agents or advisers are giving any other representations or warranties of any kind nor may any other representations or warranties made by or on behalf of the Seller, any of its Affiliates (including any member of the Group) or any of their respective directors, officers, employees, agents or advisers be relied on, or form the basis of, or be pleaded in connection with, any claim by the Purchaser or any of its Affiliates under or in connection with this Agreement.
10.2 The Seller acknowledges and agrees with the Purchaser (for itself and for the benefit of the Purchaser and its Affiliates and each of their respective directors, officers, employers, agents and advisers) that the representations and warranties in Clause 7.3 are the only representations and warranties given by or on behalf of the Purchaser and on which the Seller may rely in entering into and performing this Agreement and that none of the Purchaser, any of its Affiliates or any of their respective directors, officers, employees, agents or advisers are giving any other representations or warranties of any kind nor may any other representations or warranties made by or on behalf of the Purchaser, any of its Affiliates or any of their respective directors, officers, employees, agents or advisers be relied on, or form the basis of, or be pleaded in connection with, any claim by the Seller or any of its Affiliates under or in connection with this Agreement.
10.3 The liability of a Party for any Claim shall be limited as follows:
(a) It is understood and agreed that no Party shall be liable for indemnification in respect of any Claim unless the Escrow Holder shall incur no Liability amount of the Damages to which the claimant Party would otherwise be entitled exceeds US$100,000 (except for acts of gross negligence or willful misconductits equivalent in another currency) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.a "PERMITTED CLAIM");
(b) None no Party shall be entitled to recover any Damages in respect of any Claim unless and until the amount of Damages in respect of Permitted Claims under this Agreement exceeds in the aggregate the sum of US$500,000 (or its equivalent in another currency), in which event the entire amount of such Claims shall be recoverable; and
(c) the maximum aggregate liability of a Party in respect of all and any Claims under this Agreement shall not exceed an amount equal to the Purchase Price (or its equivalent in another currency).
10.4 No Party shall be entitled to make any Claim (and the other Party shall have no liability for any Claim hereunder):
(a) to the extent that such Claim would not have arisen but for a change in any Law or a change in the interpretation of any Law announced or enacted on or after Closing (whether relating to Taxes, rates of Taxation or otherwise) or the withdrawal after Closing of any practice or extra-statutory concession previously published by a Tax Authority (whether or not the change purports to be effective retrospectively in whole or in part);
(b) unless such Claim is made in good faith and unless written particulars of such Claim (giving such details of the provisions hereof specific matter in respect of which such claim is made as are then in the possession the claimant Party) shall be construed so as have been given to require such Party pursuant to Clause 12 and Clause 10.5(a) within the Escrow Agent survival period specified in Clause 8, if applicable;
(c) for any exemplary, punitive, special, indirect, remote, speculative or consequential damages, including loss of anticipated profits, damages to expend reputation and goodwill and loss of expected future business;
(d) to the extent that such Claim is attributable to any act or risk omission of such Party or any of its own funds or otherwise incur Affiliates after Closing; or
(e) to the extent that such Claim is actually recovered under any liability in the performance policy of its duties under these Instructions and it insurance; provided further that:
(i) no Party shall be under entitled to be paid more than once in respect of any Claim arising out of the same subject matter; and
(ii) if any potential Claim shall arise by reason of a liability of a Party which is contingent only, then such Party shall have no obligation to make any payment except out in respect of such Claim until such time as the contingent liability ceases to be contingent and becomes actual (subject to Clause 8 and the other provisions of this Clause 10).
(a) If any Party (an "INDEMNIFIED PARTY") becomes aware of a matter which could give rise to a Claim, the Indemnified Party shall give written notice of the funds received by it relevant facts to the other Party (after deduction the "INDEMNIFYING PARTY") as soon as reasonably practicable and in any event with ten (10) Business Days of any Indemnified Party becoming aware of those facts. Subject to Clause 10.4(b), failure of an Indemnified Party to give such notice promptly shall not relieve the Indemnifying Party of its fees obligation hereunder; provided, however, that if such failure to give notice promptly adversely affects the ability of the Indemnifying Party to defend such claims or materially increases the amount of indemnification which the Indemnifying Party is obligated to pay hereunder, the amount of indemnification to which the Indemnified Party will be entitled to receive shall be reduced to an amount which the Indemnified Party would have been entitled to receive had such notice been timely given.
(b) Unless the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party elects to assume the defense of an Action that is the subject of a Claim made by the Indemnified Party or the settlement thereof (such notice to be given as promptly as reasonably possible in view of the necessity to arrange for such defense and expensesto be accompanied by an acknowledgment of the Indemnifying Party's obligation to indemnify the Indemnified Party in respect of such matter), the Indemnified Party shall assume the defense of any such Action or settlement thereof. Such defense shall be conducted expeditiously (but with due regard for obtaining the most favorable outcome reasonably likely under the circumstances, taking into account costs and expenditures) and the Indemnifying Party or Indemnified Party, as the case may be, shall be advised promptly of all developments.
(c) If it becomes illegal the Indemnifying Party assumes the defense, the Indemnified Party will have the right to participate fully in any such Action and to retain its own counsel, but the fees and expenses of such counsel will be at its own expense unless (i) the Indemnifying Party shall have agreed to the retention of such counsel or impossible for (ii) the Escrow Holder named parties to carry out any such Action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. If the Indemnifying Party assumes the defense (and without regard to whether or not the Indemnified Party participates in such Action), the Indemnifying Party shall have the right to settle such Action in its sole discretion, to the extent that the remedy is only monetary but, to the extent that the remedy is non-monetary, shall not settle such Action without the prior written consent of the provisions hereofIndemnified Party, the Escrow Agent which consent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to hereinnot be unreasonably withheld or delayed.
(d) The Escrow Holder Notwithstanding the foregoing, the Indemnifying Party shall not be required entitled to take or be bound by notice of default assume the defense of any person, or to take any action with respect to part of such default is given to Escrow Holder Action (and shall be liable for the fees and expenses of counsel incurred by the undersigned Indemnified Party in defending such matter) to the extent that the Action seeks an order, injunction or any other equitable relief or relief for other than money damages against the Indemnified Party subject to the same requirements referred to above for the Indemnifying Party when it is entitled to assume such defense; provided that the Indemnified Party shall not have the right to settle such matter without the prior written consent of themthe Indemnifying Party, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder which consent shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt unreasonably withheld or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesdelayed. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, Indemnifying Party and the Escrow Holder Indemnified Party shall have no duties each cause their respective counsel to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel cooperate in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderabove defense.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood The Trustee may execute any of the trusts or powers hereof and agreed that perform the Escrow Holder duties required of it hereunder by or through attorneys, agents, receivers or employees, and shall incur no Liability (be entitled to advice of counsel concerning all matters of trust and its duties hereunder and shall not be answerable for the conduct of the same if appointed by the Trustee with reasonable care, and the advice of any such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted hereunder in good faith and reliance thereon. The Trustee shall not be answerable for the exercise of any discretion or power under this Indenture or for anything whatsoever in connection with the trusts created hereby, except only for acts of its own gross negligence or willful misconduct) and . The Trustee shall not be under no obligation liable with respect to take any steps action taken or action (whether omitted to be taken by commencement of legal proceedings or otherwise) to insure that any funds are actually received by it in good faith in accordance with the Escrow Holder.
(b) None direction of the provisions hereof Owners of not less than 25% in aggregate principal amount of the Bonds Outstanding relating to the time, method and place of conducting any proceeding or any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. No provision of this Indenture shall be construed so as to require the Escrow Agent Trustee to expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties under these Instructions and it shall be under no obligation to make hereunder, or in the exercise of any payment except out of its rights or powers. The permissive rights of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder Trustee to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder do things enumerated in this Trust Indenture shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, construed as a duty unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesso specified herein. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Trustee shall not be liable for any error or of judgment or for act done or step taken or omitted by it made in good faith by a responsible officer, director or for employee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts. The Trustee shall be under no obligation to exercise any mistake of the rights or fact powers vested in it by this Trust Indenture at the request, order or law (except for acts direction of gross negligence any of the Owners pursuant to the provisions of this Trust Indenture unless such Owners shall have offered to the Trustee reasonable security or willful misconduct)indemnity against the costs, expenses and liabilities which may be incurred therein or for anything which it may do thereby. Whether or refrain from doing in connection herewithnot expressly so provided, every provision of this Trust Indenture relating to the conduct or affecting the liability of the Trustee shall be subject to the provisions of this Article X and shall extend to the Registrar, Paying Agents, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, employees and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights agents of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedTrustee.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Indenture (Enron Corp/Or/)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass B ( - ) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Third Amended and Restated Indenture Supplement (Discover Card Master Trust I)
Limitations on Liability. (a) It is understood None of the Indenture Trustee, the Owner Trustee, JPMCB, Chase Card Funding or any other beneficiary of the Issuing Entity or any of their respective officers, directors, employers or agents will have any liability with respect to this Indenture, and agreed that recourse of any Noteholder may be had solely to the Escrow Holder shall incur no Liability (except Collateral designated for acts of gross negligence or willful misconduct) inclusion in Asset Pool One and be under no obligation pledged to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by secure the Escrow Holderapplicable Notes.
(b) None It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust Company (“WTC”), not individually or personally but solely as Owner Trustee of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability Issuing Entity, in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out exercise of the funds received by it powers and authority conferred and vested in it, (after deduction of its fees and expenses).
(cb) If it becomes illegal or impossible for the Escrow Holder to carry out any each of the provisions hereofrepresentations, undertakings and agreements herein made on the Escrow Agent shall incur no liability as a consequence part of the enforceability of lack thereof of any Issuing Entity is made and intended not as personal representations, undertakings and agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default WTC but is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine made and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief intended for the purpose of having binding only the respective rights Issuing Entity, (c) nothing herein contained shall be construed as creating any liability on WTC, individually or personally, to perform any covenant either expressed or implied contained herein of the claimants adjudicatedIssuing Entity, all such liability, if any, being expressly waived by the parties hereto and deposit with by any Person claiming by, through or under the court all documents parties hereto, (d) WTC has not verified and property held hereundermade no investigation as to the accuracy or completeness of any representations and warranties made by the Issuing Entity in this Indenture and (e) under no circumstances shall WTC be personally liable for the payment of any indebtedness or expenses of the Issuing Entity or be liable for the breach or failure of any obligation, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against representation, warranty or covenant made or undertaken by the interpled funds and shall constitute a lien thereonIssuing Entity under this Indenture or any other related documents.
Appears in 1 contract
Sources: Indenture (Jpmorgan Chase Bank, National Association)
Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconductNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT OR THE RECEIVER BE LIABLE FOR THE INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS OF THE OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THE PERFORMANCE OF, OR THE FAILURE TO PERFORM, ANY OBLIGATION(S) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderSET FORTH HEREIN, EXCEPT FOR SUCH DAMAGES CLAIMED BY THIRD PARTIES UNDER ARTICLE 9.
(b) None No present or future officer, director, manager, employee, advisor, agent or attorney of or in Seller or Buyer, nor the provisions hereof Receiver, shall be construed so as have any personal liability, directly or indirectly, under or in connection with the Transaction Documents, or any amendments thereto, and the Parties and their successors and assigns and all other Persons shall look solely to require the Escrow Agent to expend Parties’ assets for the payment of any claim or risk for any of its own funds or otherwise incur performance, and the Parties hereby waive any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)all such personal liability.
(c) If it becomes illegal No officer, director, employee, agent or impossible for the Escrow Holder other representative of Seller, Receiver or Buyer shall have any personal liability or obligation whatsoever with respect to carry out any of the provisions hereofmatters set forth in this Agreement and any other documents, the Escrow Agent shall incur no liability as a consequence agreements, or instruments related thereto or any of the enforceability of lack thereof of representations made by Seller or Buyer being or becoming untrue, inaccurate or incomplete in any agreements referred to hereinrespect.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified limitations on liability contained in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto this Section 12.12 are in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bankaddition to, and believed by the Escrow Holder not in limitation of, any limitation on liability applicable to be genuine and to have been transmitted by the proper party Seller or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it Buyer provided in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any provision of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court this Agreement or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated Law or by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedany other Contract.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Asset Purchase Agreement
Limitations on Liability. (a) It The Sellers’ Representative is understood acting solely in an agency capacity in connection with this Agreement and agreed that the Escrow Holder shall incur Agreement and will have no Liability (personal liability to any Person for any action taken, or inaction, in its capacity of the Sellers’ Representative, except for acts to the extent it is determined by a court of competent jurisdiction, in a final non-appealable order, to have resulted directly and solely from the gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement misconduct of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderSellers’ Representative. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE SELLERS’ REPRESENTATIVE BE LIABLE TO ANY SELLER FOR ANY SPECIAL, SPECULATIVE, REMOTE, EXEMPLARY, INDIRECT, INCIDENTAL, TREBLE, CONSEQUENTIAL OR PUNITIVE DAMAGES.
(b) None of In connection with the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any exercise of its own funds or otherwise incur any liability in duties, the performance of Sellers’ Representative will be entitled to consult with and rely upon legal counsel (including Sellers’ Counsel) and other professional advisors, with the costs thereof (and all other out-of-pocket costs reasonably incurred by the Sellers’ Representative incident to discharging its duties under these Instructions and it shall this Agreement) to be under no obligation to make allocated among the Sellers in accordance with their respective Applicable Total Percentages (the amount of which may be withheld from any payment except out of the funds received by it (after deduction of its fees and expensesdue to such Seller hereunder).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent The Sellers’ Representative shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by furnished to it, not only as to its due execution, validity and effectiveness, but also as to the Escrow Holder to be signed by the proper party or partiestruth and accuracy of any information therein contained, without inquiry. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder Sellers’ Representative shall not be liable for any error or of judgment or for any act done or step taken or omitted by it in good faith faith, or for any mistake or of fact or law Law.
(except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder d) The Sellers’ Representative shall have no duties to anyone except those signing these Instructionswhich are expressly set forth herein.
(ge) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunderEach Seller, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with such Seller’s respective Applicable Total Percentage, shall indemnify, defend and hold the opinion Sellers’ Representative harmless from and instructions against any and all claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) which the Sellers’ Representative may suffer or sustain as a result of counselany action taken, or not taken, in good faith hereunder. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event the Holdback Amount is not sufficient to satisfy and pay in full all expenses and obligations of any disagreement between the undersigned or any person or persons named Sellers’ Representative likely to be incurred by the Sellers’ Representative in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyfulfilling its obligations hereunder, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder Sellers’ Representative shall not be or become liable for damages or interest obligated to take any action contemplated by this Agreement until the Sellers shall have paid to the undersigned or any of them, or Sellers’ Representative sufficient amounts to any person named pay in these Instructions, for its refusal to comply with full all such conflicting or adverse demands; expenses and the Escrow Holder obligations (which payment shall be entitled to continue so to refrain and refuse to act until:
(i) made by the rights of the adverse claimants have been finally adjudicated Sellers in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedaccordance with their respective Applicable Total Percentages).
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Stock Purchase Agreement (Evoqua Water Technologies Corp.)
Limitations on Liability. (a) It is understood In no event shall a Parent Indemnified Party have any right under this Article X to indemnification with respect to an Indemnified Loss unless the Parent Indemnified Party provides to the Representative a Notice of Third-Party Claim or a Notice of Direct Claim with respect to such Indemnified Loss prior to the expiration of the Survival Period. The indemnification and agreed that other obligations under this Article X shall terminate with the Escrow Holder shall incur no Liability (expiration of the Survival Period, except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by Third-Party Claim described in any Notice of Third-Party Claim, and any direct claim described in any Notice of Direct Claim, furnished to the Escrow HolderRepresentative prior to the expiration of the Survival Period shall be preserved until final resolution thereof despite the subsequent expiration of the Survival Period. Except as set forth in the preceding sentence, no claim for indemnification under this Article X shall be brought after the end of the Survival Period.
(b) None The rights of the provisions hereof Parent Indemnified Parties to make claims against the Escrow Fund and any proceeds thereof pursuant to this Article X shall be construed so as the sole and exclusive remedy of such Parent Indemnified Parties after the Closing with respect to require any claims for indemnification under this Agreement. Notwithstanding anything to the contrary in this Agreement (i) none of (A) the former stockholders of the Company, (B) the Note Holders, (C) the Representative, or (D) any of such parties’ respective officers, directors, employees, consultants, stockholders or affiliates, shall have any direct (that is, other than by reason of any such Person’s interest in the Escrow Agent Fund) obligation or liability to expend or risk indemnify any of its own funds or otherwise incur any liability in Parent Indemnified Party pursuant to this Article X, it being understood and agreed by the performance of its duties parties that the Parent Indemnified Parties’ right to indemnification under these Instructions and it this Article X shall be under satisfied solely out of the Escrow Fund, and (ii) no obligation Parent Indemnified Party shall be entitled to make any payment except out claim for indemnification pursuant to this Article X against any of the funds received by it Persons described in subclauses (after deduction A) through (D) of its fees and expenses)clause (i) above.
(c) If it becomes illegal or impossible for Except with respect to Indemnified Losses resulting from (i) a breach by the Escrow Holder to carry out Company of any covenant made by the Company under this Agreement, (ii) a breach by the Company of any of the provisions hereofrepresentations and warranties made by the Company in Section 2.15, or (iii) Indemnified Losses resulting from claims described at clause (ii), (iii) or (iv) of Section 10.2, the Escrow Agent Parent Indemnified Parties shall incur have no liability as a consequence right to indemnification out of the enforceability Escrow Fund pursuant to this Article X until such time as the aggregate Indemnified Losses for which the Parent Indemnified Parties are otherwise entitled to indemnification hereunder equals or exceeds $2,000,000 (the “Basket”), at which point the Parent Indemnified Parties’ right to indemnification out of lack thereof the Escrow Fund shall be limited to the amount by which Indemnified Losses exceed the Basket. Indemnified Losses resulting from (x) a breach by the Company of any agreements referred covenant made by the Company under this Agreement, (y) a breach by the Company of any of the representations and warranties made by the Company in Section 2.15, or (z) any of the claims described at clause (ii), (iii) or (iv) of Section 10.2 shall not be subject to hereinthe Basket but shall be subject to the other limitations set forth in this Article X. For purposes of the preceding sentence, nothing in Article II of this Agreement shall be deemed to be a covenant. Claims against the Escrow Fund permitted under Section 9.1 and 12.6 shall not be subject to the provisions of this Article X or the Basket.
(d) The Escrow Holder provisions of this Article X shall apply in such a manner as not to give duplicative effect to any item of Adjustment. To avoid double counting as to any matter, the term “Losses” shall not be required to take or be bound by notice of default of include any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability Loss suffered with respect to any good faith action taken liability or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts obligation of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Company or any of them, the Company Subsidiaries to the extent that such liability or to obligation (or a reserve therefor) is set forth in the Final Closing Date Balance Sheet or is reflected in any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in Adjustments, even if the events, facts or circumstances giving rise to such Loss would also constitute a court or by arbitration as set forth below assuming and having jurisdiction breach of any of the parties Company’s representations and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedwarranties under Article II.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood Notwithstanding any provision to the contrary in this Agreement, indemnification payments and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other amounts described herein as payable by the Escrow HolderSeller hereunder, whether following demand, within a specified time period or otherwise shall only be payable from Available Seller Funds (and, as a result, may be payable from any Trust Asset only if, to the extent that, and after such Trust Asset shall have been distributed to the Seller in accordance with the terms of the Pooling and Servicing Agreement and the Series Supplement). Unless and until Available Seller Funds become available to pay any such amount, such amount shall not be due and payable until a year and a day after the Collection Date for the last then outstanding Series.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend members, managers, officers, employees, agents, stockholders, holders of limited liability company interests, officers or risk any directors of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it Seller or any such holders, past, present or future, shall be under no obligation any liability to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofTrust, the Escrow Agent shall incur no liability as a consequence of Trustee, the enforceability of lack thereof Purchasers or any other Person for any action taken or for refraining from the taking of any agreements referred action in such capacities or otherwise pursuant to herein.
(d) The Escrow Holder shall not be required to take this Agreement or be bound by notice of default of for any personobligation or covenant under this Agreement, or to take any action it being understood that, with respect to such default is given the Seller, this Agreement and the obligations created thereunder and hereunder shall be, to Escrow Holder by the undersigned or any fullest extent permitted under applicable law, solely the limited liability company obligations of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesSeller. The Escrow Holder will be entitled to treat as genuine Seller and as any member, manager, officer, employee, agent, stockholder, holder of limited liability company interest, officer or director of or in the document it purports to be any letterSeller, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it may rely in good faith or for on any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event document of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, kind prima facie properly executed and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne submitted by the signatories hereto, any Person (other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned Seller or any person or persons named in these Instructions, and Affiliate thereof) respecting any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held matters arising hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.. * * * *
Appears in 1 contract
Sources: Certificate Purchase Agreement (Wentworth J G & Co Inc)
Limitations on Liability. Neither Co-Trustee will be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty made by it in Section 6.6 is not true and correct as of the provisions hereof shall Closing Date:
(i) neither Co-Trustee will be construed liable for any action taken or not taken by it (A) according to the instructions of the Noteholders of a majority of the Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to require negligence;
(ii) neither Co-Trustee will be liable for indebtedness evidenced by or created under the Escrow Agent Transaction Documents, including the principal of and interest on the Notes or amounts distributable to expend the holder of the Residual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or risk sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 20 - Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by it in Section 6.6);
(iv) neither Co-Trustee will be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of its own funds the Owner Trustee;
(v) neither Co-Trustee will be responsible or otherwise incur any liability liable for special, punitive, indirect or consequential damages (including lost profit), even if it has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(vi) neither Co-Trustee will be responsible or liable for a failure or delay in the performance of its duties obligations under these Instructions and it shall be under no obligation to make any payment except out this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal war, terrorism, civil or impossible for the Escrow Holder to carry out any of the provisions hereofmilitary disturbances, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personnuclear catastrophes, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of themfires, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written noticefloods, requestearthquakes, waiverstorms, consent, receipt hurricanes or other paper natural catastrophes and interruptions, loss or document believed by the Escrow Holder to be signed by the proper party failures of mechanical, electronic or parties. The Escrow Holder communication systems; each Co-Trustee will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability use reasonable efforts consistent with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel accepted practices in the event of any dispute or questions banking industry to resume performance as soon as practicable under the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holdercircumstances.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Agreement (CAB West LLC)
Limitations on Liability. The Owner Trustee will not be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or gross negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty in Section 6.6 is not true and correct as of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act untilClosing Date:
(i) the rights Owner Trustee will not be liable for any action taken or not taken by it (A) according to the instructions of the adverse claimants have been finally adjudicated in Noteholders of a court or by arbitration as set forth below assuming and having jurisdiction majority of the parties Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the Certificateholders, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the action taken or not taken does not amount to gross negligence; provided, however, that the foregoing shall not relieve the Owner Trustee of its obligation to perform its duties under this Agreement;
(ii) the Owner Trustee will not be liable for indebtedness evidenced by or created under the Transaction Documents, including the principal of and interest or Make-Whole Payments on the Notes or amounts distributable to the Certificateholders;
(iii) the Owner Trustee will not be liable for and makes no representations as to (A) the validity or sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents or related documents, (E) the legality, validity and enforceability of the Certificates or the Notes, (F) the perfection and priority of a security interest created in the Receivables or the maintenance of any perfection and priority, (G) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the Certificateholders under this Agreement or (H) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by the Owner Trustee in Section 6.6);
(iv) the Owner Trustee will not have any responsibility or liability for or with respect to (A) the legality, validity and enforceability of any Receivable, (B) the existence and ownership of any Receivable, (C) the existence and contents of any device payment plan agreement or any computer or other record thereof, (D) the completeness of any device payment plan agreement or (E) the performance or enforcement of any device payment plan agreement;
(v) the Owner Trustee will not have any responsibility or liability for or with respect to the compliance by the Issuer with any covenant or the breach by the Issuer of any warranty or representation made under this Agreement or in any related document and the money involved herein accuracy of any such warranty or representation prior to the Owner Trustee's receipt of notice or other discovery of any noncompliance therewith or any breach thereof;
(vi) the Owner Trustee will not be liable for the default or misconduct of or acts or omissions of the Servicer, the Administrator, the Depositor, any Certificateholder, the Indenture Trustee or the Asset Representations Reviewer under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of the Owner Trustee and affected herebythe Owner Trustee shall have no obligations to perform any of the duties of or to monitor the performance by the Issuer, the Servicer, the Indenture Trustee, the Administrator, the Asset Representations Reviewer or any other Person; provided that, to the extent a Responsible Person of the Owner Trustee has actual knowledge of a breach of a representation, warranty or covenant of any party, the Owner Trustee shall notify such party of the breach;
(vii) the Owner Trustee shall not be accountable for (A) the use or application by the Depositor of the proceeds of the sale of the Notes, (B) the use or application by the Certificateholders of the Certificates or the proceeds of the Certificates, (C) the use or application by the holder of any Notes of any of the Notes or of the proceeds of such Notes, or (D) the use or application of any funds paid to the Servicer in accordance with the Transfer and Servicing Agreement;
(viii) the Owner Trustee will not be responsible or liable for special, punitive, indirect or consequential damages (including lost profit), even if the Owner Trustee has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(iiix) all differences have been adjudicated by agreement the Owner Trustee will not be responsible or liable for a failure or delay in the performance of its obligations under this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of war, terrorism, civil or military disturbances, nuclear catastrophes, fires, floods, earthquakes, storms, hurricanes or other natural catastrophes and interruptions, loss or failures of mechanical, electronic or communication systems; and the Escrow Holder has been notified thereof Owner Trustee will use reasonable efforts consistent with accepted practices in writing by all of the persons interestedbanking industry to resume performance as soon as practicable under the circumstances.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Agreement (Verizon ABS LLC)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Facility Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderFacility Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the grossly negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files.
(d) 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 Collateral, and will not be required to and will not make any representations as to the Escrow Holder validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, so long as no Event of any disagreement between Default has occurred and is continuing or the undersigned Facility Termination Date has not occurred, request instructions from the Servicer and may, if an Event of Default has occurred and is continuing or any person or persons named in these Instructionsthe Facility Termination Date has occurred, request instructions from the Facility Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option all times to refuse refrain from taking any action unless it has received instructions from the Servicer or the Facility Agent, as applicable. The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing compliance with the Escrow Holder instruction of the Facility Agent. In no event shall not the Collateral Custodian be or become liable for damages special, indirect, punitive or interest consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the undersigned Collateral Custodian has been advised of the likelihood of such loss or any damage and regardless of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:form of action.
(i) the rights Each of the adverse claimants have been finally adjudicated protections, reliances, indemnities and immunities offered to the Collateral Agent in a court or by arbitration as set forth below assuming Section 11.7 and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees Section 11.8 shall be payable against afforded to the interpled funds and shall constitute a lien thereonCollateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Crestline Lending Solutions, LLC)
Limitations on Liability. (a) It is understood The Collateral Custodian may conclusively rely on and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto fully protected in acting upon any written certificate, instrument, opinion, notice, requestletter, waiver, consent, receipt telegram or other paper or document believed by the Escrow Holder 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 Escrow Holder will Collateral Custodian may rely conclusively on and shall be entitled to treat as genuine and as fully protected in acting upon (a) the document it purports to be written instructions of any letter, paper, telex, designated officer of the Administrative Agent or other document furnished or caused to be furnished to (b) the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or verbal instructions of the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunderAdministrative Agent.
(fb) The Escrow Holder 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.
(c) The Collateral Custodian shall not be liable for any error or judgment of judgment, or for any act done or step taken or omitted by it it, in good faith faith, or for any mistake or mistakes of fact or law (except for acts of gross negligence or willful misconduct)law, or for anything which that it may do or refrain from doing in connection herewithherewith except in the case of its bad faith, willful misconduct or gross negligence in the performance or omission of its duties, including its duties in taking and retaining custody of the Collateral Asset Files.
(d) 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 Collateral or the Collateral Asset Files, and will not be required to and will not make any representations as to the Escrow Holder 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 action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(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.
(f) The Collateral Custodian shall not be required to anyone except those signing these Instructionsexpend or risk its own funds in the performance of its duties hereunder. 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) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) The Escrow Holder may consult with legal counsel in It is expressly agreed and acknowledged that the event Collateral Custodian is not guaranteeing performance of or assuming any dispute liability for the obligations of the other parties hereto or questions as any parties to the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow HolderCollateral.
(h) In case any reasonable question arises as to its duties hereunder, the event Collateral Custodian may, prior to the occurrence of any disagreement between the undersigned Maturity Date or any person absent the continuance of an Event of Default, request instructions from the Collateral Manager and may, after the occurrence of the Maturity Date or persons named in these Instructionsduring the continuance of an Event of Default, request instructions from the Administrative Agent, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder 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 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. In no event shall the Collateral Custodian be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) In the absence of bad faith on the part of the Collateral Custodian, the Collateral Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion, electronic communication or other document furnished to the Collateral Custodian, reasonably believed by the Collateral Custodian to be genuine and to have been signed, sent or presented by the proper party or parties and conforming to the requirements of this Agreement; but in the case of a request, instruction, document, certificate, opinion or other document which by any provision hereof is specifically required to be furnished to the Collateral Custodian, the Collateral Custodian shall be under a duty to examine the same in accordance with the requirements of this Agreement to determine that they conform on their face to the form required by such provision. For avoidance of doubt, Collateral Custodian may rely conclusively on certificates of a Responsible Officer delivered by the Collateral Manager. The Collateral Custodian 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, or taken by it pursuant to any direction or instruction by which it is governed hereunder, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action, except to the extent that such inaccuracies or errors are caused by the Collateral Custodian’s own bad faith, willful misconduct or gross negligence.
(j) Without limiting the generality of any terms of this Section 12.11, the Collateral Custodian shall have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Administrative Agent, the Borrower or any other Person 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, delay or error in the performance or observance on the Collateral Custodian’s part of any of its option 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 refuse comply with the terms hereof, except in the case of the Collateral Custodian’s own bad faith, willful misconduct or gross negligence.
(k) The Collateral Custodian shall not be bound to make any investigation into the facts or matters stated in any certificate, report, electronic communication or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Custodian shall examine the same to determine whether it conforms on its face to the requirements hereof. It is expressly acknowledged by the Borrower, the Collateral Manager and the Administrative Agent 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 with respect to the Collateral Asset, 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). 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 is in default or in compliance with the underlying documents governing or securing such securities, from time to time.
(l) 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.
(m) The Collateral Custodian may exercise any of its rights or powers hereunder (or under any other Loan Document) or perform any of its duties hereunder either directly or, by or through agents or attorneys, and the Collateral Custodian shall not be liable for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care by it except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Collateral Custodian acted with gross negligence or willful misconduct in the selection of such agents or attorneys. The Collateral Custodian shall be under no obligation to exercise or honor any of the rights or powers vested in it by this Agreement or other Loan Document at the request or direction of the Administrative Agent (or any other Person authorized or permitted to direct the Collateral Custodian hereunder) pursuant to this Agreement or other Loan Document, unless the Administrative Agent (or such other Person) shall have offered the Collateral Custodian security or indemnity reasonably acceptable to the Collateral Custodian against costs, expenses and liabilities (including any legal fees) that might reasonably be incurred by it in compliance with such request or direction.
(n) In connection with any currency exchange required hereunder, the Collateral Custodian may rely conclusively on the determination of the spot rate provided to it and the Collateral Custodian shall not be liable for any losses, shortfalls or expenses associated with the determination of such rate or conversion and delivery of such amounts on behalf of the Borrower of such amounts. It is understood and agreed that any foreign exchange transaction effected by the Collateral Custodian may be entered with the bank serving as Collateral Custodian 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. It is acknowledged and agreed that the bank serving as Collateral Custodian or any affiliates of the Collateral Custodian involved in any such claims foreign exchange transactions may make a margin or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder banking income from foreign exchange transactions entered into pursuant to this section for which they shall not be or become liable for damages or interest required to the undersigned or any of them, or account to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedperson.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. Notwithstanding any other provision of this Agreement:
(ai) The Buyer Indemnified Parties shall have the right to payment by Sellers under Section 8(b) only if and to the extent that the Buyer Indemnified Parties shall have incurred indemnifiable Losses in excess of $3,000,000.00 (the “Deductible”); provided, further, that the maximum aggregate obligation of Sellers to the Buyer Indemnified Parties under this Section 8(e) shall not exceed $20,000,000.00 (the “Cap”). Solely for purposes of determining whether Buyer shall have incurred indemnifiable Losses in excess of the Deductible or whether such Losses are in excess of the Cap, Losses indemnifiable under the terms of the Outsourcing Asset Purchase Agreement shall be deemed to be Losses indemnifiable under the terms of this Agreement. Notwithstanding anything to the contrary herein, the limitations contained in the provisos above shall not apply to (A) any indemnification for any Losses incurred by the Buyer Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty, (B) any indemnification for any Losses incurred by the Buyer Indemnified Parties in connection with any Liability indemnified by Sellers under Sections 8(b)(ii)-(vi), or (C) any indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of any of the Sellers’ Transaction Representations and Warranties.
(ii) Neither Buyer nor Sellers shall have any liability under this Agreement for any breach of or inaccuracy in any representation or warranty in excess of the Purchase Price in the aggregate.
(iii) The amount of any Loss for which indemnification is provided under Section 8 shall be net of an amount equal to the Tax benefit actually realized, if any, attributable to such Loss. If the amount to be netted hereunder from any payment required under Section 8(b) or 8(c) is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to Section 8, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Section 8 had such determination been made at the time of such payment.
(iv) Notwithstanding anything to the contrary contained in this Agreement, Buyer shall reduce its claim for indemnification under Section 8 with respect to any Losses or alleged Losses by the amount that the Buyer shall have received as a result of a reduction in the Closing Net Investment reflected in the Closing Financial Statements on account of any matter applicable to this Section 8 forming the basis for such Losses or alleged Losses.
(v) It is the parties’ intention that claims against the Transaction Insurance Policy, and the Environmental Insurance Policy (as to breaches for representations and warranties under Section 3(z) of this Agreement), shall be the sole sources of payment with respect to indemnifiable Losses claimed by Buyer under Section 8(b)(i) (other than for breaches of representations and warranties under Sections 3(o), and 3(q)), 8(b)(iii) and (iv) of this Agreement. Buyer shall provide Sellers with copies of the Transaction Insurance Policy and the Environmental Insurance Policy as well as any and all amendments or supplements thereto. In the event of a claim, Buyer shall provide Sellers with a copy of all correspondence and documents with respect to the claim. In the event that the Transaction Insurance Company or the Environmental Insurance Company denies the claim, the Sellers shall remain obligated to indemnify Buyer with respect to such Losses provided, however, that such obligation shall be conditioned upon the Buyer’s diligent good faith and commercially reasonable efforts to assert its claim under the Transaction Insurance Policy or the Environmental Insurance Policy, respectively, and its exhaustion of all procedures set forth in the Transaction Insurance Policy or the Environmental Insurance Policy with respect to appeal of any denial of claim or reservation of rights by the Transaction Insurance Company or the Environmental Insurance Company, respectively. The parties shall cooperate in resolving any Loss with respect to which the Transaction Insurance Company or the Environmental Insurance Company has denied coverage, including the assignment of rights from the Buyer to the Sellers upon request.
(vi) Notwithstanding anything contained herein or otherwise to the contrary, including Sections 8(a), 8(e)(i), 8(e)(ii), and 8(e)(iii), nothing herein shall be deemed to limit any Party’s rights to recover any or all Losses incurred or suffered by it relating to or arising out of or in connection with fraud, it being understood and agreed that the Escrow Holder right to recover such Losses shall incur survive forever; provided, however, in no Liability (except event shall either Buyer or Sellers have any liability for acts indemnification under Section 8 in excess of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderPurchase Price in the aggregate.
(bvii) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds Notwithstanding anything contained herein or otherwise incur any liability in to the performance contrary, Buyer may recover for a Loss related to an Assumed Liability only to the extent that such Loss results from a breach of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received a representation or warranty by it (after deduction of its fees and expenses).
(c) If it becomes illegal Sellers or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any personRemy hereunder, or to take any action with respect to the extent such default is given to Escrow Holder by Loss results from the undersigned intentional misrepresentation or any fraud of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense Sellers or liabilityRemy.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Asset Purchase Agreement (Remy International, Inc.)
Limitations on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES PROVIDED BY Service_Exporter ON OR THROUGH THE SITES ARE PROVIDED "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS”, AND Service_Exporter HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, AND UNDERTAKINGS ARE HEREBY EXCLUDED Any material downloaded or otherwise obtained through the Sites is done at each Member's sole discretion and risk and each Member is solely responsible for any damage to Service_Exporter’s computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any Member from Service_Exporter or through or from the Sites shall create any warranty not expressly stated herein. The Sites may make available to Member services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall Service_Exporter and our affiliates be held liable for any such services or products. Each Member hereby agrees to indemnify and save Service_Exporter, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (aincluding legal costs on a full indemnity basis) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None which may arise from such Member's use of the provisions hereof shall be construed so as Sites or Services (including but not limited to require the Escrow Agent to expend display of such Member's information on the Sites) or risk any from your breach of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofterms and conditions of the Terms. Each Member hereby further agrees to indemnify and save Service_Exporter, the Escrow Agent shall incur no liability our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from Member's breach of any representations and warranties made by Member to Service_Exporter, including but not limited to those set forth in Section 5 hereunder. Each Member hereby further agrees to indemnify and save Service_Exporter, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a consequence of the enforceability of lack thereof result of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound claims asserted by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt Third Party Rights claimants or other paper third parties relating to products offered or document believed by displayed on the Escrow Holder to be signed by the proper party or partiesSites. The Escrow Holder will be entitled to treat as genuine Each Member hereby further agrees that Service_Exporter is not responsible and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with respect each Member. Service_Exporter reserves the right, at our own expense, to assume the exclusive defense and control of any good faith action taken or allowed matter otherwise subject to indemnification by it hereunder.
(f) The Escrow Holder you, in which event you shall cooperate with Service_Exporter in asserting any available defenses. Service_Exporter shall not be liable for any error special, direct, indirect, punitive, incidental or judgment consequential damages or any damages whatsoever (including but not limited to damages for act done loss of profits or step taken savings, business interruption, loss of information), whether in contract, negligence, tort, equity or omitted otherwise or any other damages resulting from any of the following : the use or the inability to use the Sites or Services; any defect in products, samples, data, information or services purchased or obtained from a Member or any other third party through the Sites; violation of Third Party Rights or claims or demands that Member's manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Sites may violate or may be asserted to violate Third Party Rights; or claims by it any party that they are entitled to defense or indemnification in good faith relation to assertions of rights, demands or claims by Third Party Rights claimants; unauthorized access by third parties to data or private information of any Member; statements or conduct of any Member of the Sites; or; any matters relating to Services however arising, including negligence. Notwithstanding any of the foregoing provisions, the aggregate liability of Service_Exporter, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each Member for all claims arising from the use of the Sites or Services during any calendar year shall be limited to the greater of the amount of fees the Member has paid to Service_Exporter or our affiliates during the calendar year and the maximum amount permitted in the applicable law. The preceding sentence shall not preclude the requirement by the Member to prove actual damages. All claims arising from the use of the Sites or Services must be filed within one (1) year from the date the cause of action arose or such longer period as prescribed under any applicable law governing this Term of Use. The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Service_Exporter has been advised of or should have been aware of the possibility of any such losses arising. If the customer, for any mistake reason, gets in direct contact with one of Service_Exporter 's service or fact or law (except for acts technology suppliers and is harmed outside of gross negligence or willful misconduct)Service_Exporter 's scope of work, or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have Service_Exporter has no duties to anyone except those signing these Instructionsresponsibility.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Terms and Conditions of Use
Limitations on Liability. (a) It is understood and agreed that Notwithstanding anything herein to the Escrow Holder contrary, the Seller shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under have no obligation to take indemnify any steps Purchaser Indemnified Party pursuant to Section 8.2(a)(i)(A) or action Section 8.2(a)(ii) unless and until the aggregate amount of all of the Purchaser Indemnified Parties’ claims for indemnification for Losses under such Sections exceeds, on a cumulative and aggregate basis, *redacted* (whether by commencement the “Tipping Basket”), whereupon the Seller shall be obligated to indemnify any Purchaser Indemnified Parties pursuant to Section 8.2(a)(i)(A) or Section 8.2(a)(ii) for the aggregate amount of legal proceedings or otherwise) the Purchaser Indemnified Parties’ claims for indemnification for Losses under such Sections, including those within such Tipping Basket amount. Notwithstanding anything to insure that any funds are actually received the contrary contained in this Agreement, in no event shall the aggregate Losses to be paid by the Escrow HolderSeller pursuant to Section 8.2(a)(i)(A) and Section 8.2(a)(ii) exceed *redacted*, except for Losses arising out of any breaches of the Fundamental Representations, the Core Representations or for the Seller’s Willful Breach of any of the other representations and warranties made by the Seller in this Agreement or (without duplication of the recovery of any Losses) under the Related Documents, or any certificate, document or instrument delivered hereunder or thereunder; provided further that in no event shall the aggregate Losses to be paid by Seller pursuant to *redacted* exceed *redacted*.
(b) None of the provisions hereof No party hereto shall be construed so as to require the Escrow Agent to expend liable for any consequential, punitive, special or risk any of its own funds or otherwise incur any liability in the performance of its duties incidental damages under these Instructions this Section 8 (and it no claim for indemnification hereunder shall be asserted) as a result of any breach or violation of any representation, warranty, covenant or agreement of such party (including under no obligation this Section 8) in or pursuant to this Agreement. Notwithstanding the foregoing, any party shall be entitled to make indemnification claims, in accordance with the procedures set forth in this Section 8, for Losses that include any portion of any royalty payment except out under the Collaboration Agreement that such party was entitled to receive but did not receive timely or at all due to the other party’s breach of the funds received by it (after deduction any covenant under this Agreement, and such entitlement to payment shall not be deemed consequential, punitive, special or incidental damages for any purpose of its fees and expenses)this Agreement.
(c) If it becomes illegal or impossible for the Escrow Holder Each Indemnified Party shall take all commercially reasonable steps to carry out mitigate any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof Losses incurred by such party upon and after becoming aware of any agreements referred event or condition that would reasonably be expected to herein.
(d) The Escrow Holder give rise to any indemnification rights hereunder including pursuing any available insurance claims or claims against third parties. In no event shall not any Indemnified Party be required entitled to take or be bound by notice of default of recover more than once for any person, or to take any action Loss including with respect to such default is given to Escrow Holder by a Purchaser Indemnified Party, recovery of Losses from Theravance Biopharma (and its Affiliates) under the undersigned Theravance Biopharma EPA or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilityotherwise.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. The Owner Trustee will not be liable under the Transaction Documents, including for the following actions, except (a) It is understood and agreed that the Escrow Holder shall incur no Liability for its own willful misconduct, bad faith or negligence (except for acts of gross negligence errors in judgment) or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None if a representation or warranty in Section 6.6 is not true and correct as of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act untilClosing Date:
(i) the rights Owner Trustee will not be liable for any action taken or not taken by it according to the instructions of the adverse claimants have been finally adjudicated in Noteholders of a court or by arbitration as set forth below assuming and having jurisdiction majority of the parties Note Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual Interest, the Administrator or the Servicer;
(ii) the Owner Trustee will not be liable for indebtedness evidenced by or created under the Transaction Documents, including the principal of and interest on the money involved herein Notes or amounts distributable to the holder of the Residual Interest;
(iii) the Owner Trustee will not be liable for (A) the validity or sufficiency of this Agreement, (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and affected herebyenforceability of the 20 - Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the Noteholders under the Indenture or distributions to the holder of the Residual Interest under this Agreement or (G) the accuracy of a representation or warranty made under a Transaction Document (other than the representations and warranties made by the Owner Trustee in Section 6.6);
(iv) the Owner Trustee will not be liable for the default or misconduct of the Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of the Owner Trustee;
(v) the Owner Trustee will not be responsible or liable for special, punitive, indirect or consequential damages (including lost profit), even if the Owner Trustee has been advised of the likelihood of the loss or damage and regardless of the form of action; or
(iivi) all differences have been adjudicated by agreement the Owner Trustee will not be responsible or liable for a failure or delay in the performance of its obligations under this Agreement from or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of war, terrorism, civil or military disturbances, nuclear catastrophes, fires, floods, earthquakes, storms, hurricanes or other natural catastrophes and interruptions, loss or failures of mechanical, electronic or communication systems; the Escrow Holder has been notified thereof Owner Trustee will use reasonable efforts consistent with accepted practices in writing by all of the persons interestedbanking industry to resume performance as soon as practicable under the circumstances.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Trust Agreement (CAB East LLC)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by Wilmington Trust Company (“WTC”), not individually or personally but solely as Owner Trustee under the Escrow Holder shall incur Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Owner Trustee and the Issuer is made and intended not as a personal representation, undertaking or agreement by WTC but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on WTC individually or personally, to perform any covenant either expressed or implied contained herein of the Owner Trustee or the Issuer, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) WTC has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Owner Trustee or the Issuer in this Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderOwner Trustee or the Issuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing these Instructions.
(gsecure the Class B(2023- 1) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Indenture Supplement
Limitations on Liability. (a) It is understood Any calculation of a Loss under this Section 12 shall, in each case, give full effect to any and agreed that all insurance proceeds actually received (net of any increase in premiums payable or taxes payable as a result of the Escrow Holder shall incur no Liability (except for acts receipt of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwisesuch proceeds) to insure that any funds are actually received by the Escrow Holderapplicable indemnified party in respect of such Loss.
(b) None of the provisions hereof shall be construed so as Each Person entitled to require the Escrow Agent to expend or risk any of its own funds indemnification hereunder or otherwise incur to reimbursement for Losses in connection with the transactions contemplated by this Agreement shall use commercially reasonable efforts to mitigate any liability in the performance Losses incurred or sustained by such indemnified party upon becoming aware of its duties under these Instructions and it shall any event that would reasonably be under no obligation expected to make any payment except out of the funds received by it (after deduction of its fees and expenses)give rise thereto.
(c) If it becomes illegal Notwithstanding anything herein to the contrary, in no event shall the liability of (i) Trust I for indemnification hereunder for breach of any or impossible for all representations or warranties exceed, in the Escrow Holder to carry out any of the provisions hereofaggregate, the Escrow Agent shall incur no liability as a consequence of Olinda Purchase Price, or (ii) the enforceability of lack thereof Providence Sellers for indemnification hereunder for breach of any agreements referred to hereinor all representations or warranties exceed, in the aggregate, the Providence Purchase Price.
(d) The Escrow Holder Notwithstanding anything herein to the contrary, in no event (whether or not this Agreement has been terminated) shall not Buyer, the Buyer Parties (including, without limitation, the Sponsors and their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) either individually or in the aggregate, be required subject to take any liability in excess of the Purchase Price in the aggregate for all losses or be bound damages relating to or arising out of this Agreement or the transactions contemplated by notice of default this Agreement, including breaches by Buyer of any personrepresentations, warranties, covenants or agreements contained in this Agreement. The Sellers understand and acknowledge that their sole remedy against Buyer for breaches of this Agreement shall be money damages (as opposed to take any action with respect specific performance) subject to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilitylimitations set forth herein.
(e) The Escrow Holder Notwithstanding anything herein to the contrary, in no event shall not be liable a breach of the representations and warranties contained in Section 3.6 hereof give rise to any party hereto in acting upon obligation on the part of any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder Seller to be signed by the proper party or parties. The Escrow Holder will be entitled indemnify a Buyer Party except to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable reimburse such Buyer Party for any error or judgment or for act done or step taken or omitted Losses suffered by it in good faith or for any mistake or fact or law (except for acts such Buyer Party as a result of gross negligence or willful misconduct), or for anything which it may do or refrain a Third Party Claim arising from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructionssuch breach.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Interest Purchase Agreement (Ridgewood Electric Power Trust Iii)
Limitations on Liability. (a) It is understood and agreed that A. In any action or proceeding brought on this Promissory Note or on the Escrow Holder shall incur no Liability (except for acts of gross negligence Mortgage or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out on any of the provisions hereofLoan Documents in which a money judgment is sought (subject to paragraphs B, C, and D below), Lender will look solely to the Mortgaged Property described in the Loan Documents (including, without limitation, the Escrow Agent shall incur no liability as a consequence Collateral) for payment of the enforceability Indebtedness and, specifically and without limitation, Lender agrees to waive any right to seek or obtain a deficiency judgment against Borrower.
B. The provisions of lack thereof this Section 11 shall not
(i) constitute a waiver, release or impairment of any agreements referred obligation evidenced or secured by this Promissory Note, the Mortgage or any other Loan Document to herein.the extent of the Mortgaged Property securing such obligation;
(dii) The Escrow Holder shall not be required deemed to take or be bound by notice of default a waiver of any personright which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness secured by the Mortgage or to take any action with respect require that all Collateral shall continue to such default is given to Escrow Holder by secure all of the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished Indebtedness owing to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting Lender in accordance with the opinion Promissory Note, the Mortgage and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.Loan Documents;
(hiii) In impair the event right of any disagreement between the undersigned Lender to name Borrower or any person principals of Borrower, or persons named any guarantor of this Promissory Note, as a party or parties defendant in these Instructionsany action or suit for judicial foreclosure and sale under the Mortgage;
(iv) affect the validity or enforceability of, and or limit recovery under, any other personseparate indemnity agreement (including, resulting without limitation, any environmental indemnity set forth in adverse claims and demands being any separate environmental indemnity agreement, however designated) or separate guaranty, if any, made in connection with or for any money involved herein or affected herebythis Promissory Note, the Escrow Holder Mortgage, or the Loan Documents;
(v) impair the right of Lender to obtain the appointment of a receiver; or
(vi) impair the enforcement of an assignment of leases or an assignment of rents contained in the Mortgage or any separate Assignment of Leases and Rents executed in connection herewith.
C. Notwithstanding any provisions of this Section 11 to the contrary, nothing herein shall be entitled at its option deemed to refuse prejudice the right of Lender (which right is specifically reserved) to comply with any such claims pursue or demandsobtain personal recourse liability against the Borrower and Guarantor to recover Losses incurred by Lender, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of themarising out of, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act untilresulting from:
(i) the rights of the adverse claimants have been finally adjudicated in a court obligations and liabilities under any separate guaranty or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.separate indemnity agreement;
Appears in 1 contract
Limitations on Liability. 10.1 The Purchaser acknowledges and agrees with the Seller (for itself and for the benefit of the Seller and its Affiliates and each of their respective directors, officers, employers, agents and advisers) that the Warranties are the only representations and warranties given by or on behalf of the Seller and on which the Purchaser may rely in entering into and performing this Agreement and that none of the Seller, any of its Affiliates (including any member of the Group) or any of their respective directors, officers, employees, agents or advisers are giving any other representations or warranties of any kind nor may any other representations or warranties made by or on behalf of the Seller, any of its Affiliates (including any member of the Group) or any of their respective directors, officers, employees, agents or advisers be relied on, or form the basis of, or be pleaded in connection with, any claim by the Purchaser or any of its Affiliates under or in connection with this Agreement.
10.2 The Seller acknowledges and agrees with the Purchaser (for itself and for the benefit of the Purchaser and its Affiliates and each of their respective directors, officers, employers, agents and advisers) that the representations and warranties in Clause 7.3 are the only representations and warranties given by or on behalf of the Purchaser and on which the Seller may rely in entering into and performing this Agreement and that none of the Purchaser, any of its Affiliates or any of their respective directors, officers, employees, agents or advisers are giving any other representations or warranties of any kind nor may any other representations or warranties made by or on behalf of the Purchaser, any of its Affiliates or any of their respective directors, officers, employees, agents or advisers be relied on, or form the basis of, or be pleaded in connection with, any claim by the Seller or any of its Affiliates under or in connection with this Agreement.
10.3 The liability of a Party for any Claim shall be limited as follows:
(a) It is understood and agreed that no Party shall be liable for indemnification in respect of any Claim unless the Escrow Holder shall incur no Liability amount of the Damages to which the claimant Party would otherwise be entitled exceeds US$100,000 (except for acts of gross negligence or willful misconductits equivalent in another currency) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.a "Permitted Claim");
(b) None no Party shall be entitled to recover any Damages in respect of any Claim unless and until the amount of Damages in respect of Permitted Claims under this Agreement exceeds in the aggregate the sum of US$500,000 (or its equivalent in another currency), in which event the entire amount of such Claims shall be recoverable; and
(c) the maximum aggregate liability of a Party in respect of all and any Claims under this Agreement shall not exceed an amount equal to the Purchase Price (or its equivalent in another currency).
10.4 No Party shall be entitled to make any Claim (and the other Party shall have no liability for any Claim hereunder):
(a) to the extent that such Claim would not have arisen but for a change in any Law or a change in the interpretation of any Law announced or enacted on or after Closing (whether relating to Taxes, rates of Taxation or otherwise) or the withdrawal after Closing of any practice or extra-statutory concession previously published by a Tax Authority (whether or not the change purports to be effective retrospectively in whole or in part);
(b) unless such Claim is made in good faith and unless written particulars of such Claim (giving such details of the provisions hereof specific matter in respect of which such claim is made as are then in the possession the claimant Party) shall be construed so as have been given to require such Party pursuant to Clause 12 and Clause 10.5(a) within the Escrow Agent survival period specified in Clause 8, if applicable;
(c) for any exemplary, punitive, special, indirect, remote, speculative or consequential damages, including loss of anticipated profits, damages to expend reputation and goodwill and loss of expected future business;
(d) to the extent that such Claim is attributable to any act or risk omission of such Party or any of its own funds or otherwise incur Affiliates after Closing; or
(e) to the extent that such Claim is actually recovered under any liability in the performance policy of its duties under these Instructions and it insurance; provided further that:
(i) no Party shall be under entitled to be paid more than once in respect of any Claim arising out of the same subject matter; and
(ii) if any potential Claim shall arise by reason of a liability of a Party which is contingent only, then such Party shall have no obligation to make any payment except out in respect of such Claim until such time as the contingent liability ceases to be contingent and becomes actual (subject to Clause 8 and the other provisions of this Clause 10).
(a) If any Party (an "Indemnified Party") becomes aware of a matter which could give rise to a Claim, the Indemnified Party shall give written notice of the funds received by it relevant facts to the other Party (after deduction the "Indemnifying Party") as soon as reasonably practicable and in any event with ten (10) Business Days of any Indemnified Party becoming aware of those facts. Subject to Clause 10.4(b), failure of an Indemnified Party to give such notice promptly shall not relieve the Indemnifying Party of its fees obligation hereunder; provided, however, that if such failure to give notice promptly adversely affects the ability of the Indemnifying Party to defend such claims or materially increases the amount of indemnification which the Indemnifying Party is obligated to pay hereunder, the amount of indemnification to which the Indemnified Party will be entitled to receive shall be reduced to an amount which the Indemnified Party would have been entitled to receive had such notice been timely given.
(b) Unless the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party elects to assume the defense of an Action that is the subject of a Claim made by the Indemnified Party or the settlement thereof (such notice to be given as promptly as reasonably possible in view of the necessity to arrange for such defense and expensesto be accompanied by an acknowledgment of the Indemnifying Party's obligation to indemnify the Indemnified Party in respect of such matter), the Indemnified Party shall assume the defense of any such Action or settlement thereof. Such defense shall be conducted expeditiously (but with due regard for obtaining the most favorable outcome reasonably likely under the circumstances, taking into account costs and expenditures) and the Indemnifying Party or Indemnified Party, as the case may be, shall be advised promptly of all developments.
(c) If it becomes illegal the Indemnifying Party assumes the defense, the Indemnified Party will have the right to participate fully in any such Action and to retain its own counsel, but the fees and expenses of such counsel will be at its own expense unless (i) the Indemnifying Party shall have agreed to the retention of such counsel or impossible for (ii) the Escrow Holder named parties to carry out any such Action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. If the Indemnifying Party assumes the defense (and without regard to whether or not the Indemnified Party participates in such Action), the Indemnifying Party shall have the right to settle such Action in its sole discretion, to the extent that the remedy is only monetary but, to the extent that the remedy is non-monetary, shall not settle such Action without the prior written consent of the provisions hereofIndemnified Party, the Escrow Agent which consent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to hereinnot be unreasonably withheld or delayed.
(d) The Escrow Holder Notwithstanding the foregoing, the Indemnifying Party shall not be required entitled to take or be bound by notice of default assume the defense of any person, or to take any action with respect to part of such default is given to Escrow Holder Action (and shall be liable for the fees and expenses of counsel incurred by the undersigned Indemnified Party in defending such matter) to the extent that the Action seeks an order, injunction or any other equitable relief or relief for other than money damages against the Indemnified Party subject to the same requirements referred to above for the Indemnifying Party when it is entitled to assume such defense; provided that the Indemnified Party shall not have the right to settle such matter without the prior written consent of themthe Indemnifying Party, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder which consent shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt unreasonably withheld or other paper or document believed by the Escrow Holder to be signed by the proper party or partiesdelayed. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, Indemnifying Party and the Escrow Holder Indemnified Party shall have no duties each cause their respective counsel to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel cooperate in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holderabove defense.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood 10.1 The Buyer and agreed that Syniverse specifically acknowledge and agree that, if Completion shall have occurred, or if the Escrow Holder Seller and the Target Group shall incur have satisfied their obligations under clause 11.3, no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None Member of the provisions hereof Buyer Group shall be construed so as to require the Escrow Agent to expend or risk have any of its own funds or otherwise incur rights against any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out Member of the funds received by it (after deduction Seller Group or the Target Group or any present or former employee, shareholder, director or officer of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any Member of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ Seller Group or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made Target Group in connection with this Agreement or for its subject matter (and to the extent that any money involved herein or affected herebyMember of the Buyer Group would otherwise have any such rights, the Escrow Holder Buyer and Syniverse hereby waive and shall be entitled at its option to refuse to comply with any procure that each Member of the Buyer Group shall waive such claims or demands, so longs as such disagreement shall continuerights), and each of the Buyer and Syniverse undertakes that, if Completion shall have occurred, or if the Seller and the Target Group shall have satisfied their obligations under clause 11.3, neither it nor any Member of the Buyer Group shall make any claim against any Member of the Seller Group or the Target Group or any present or former employee, shareholder, director or officer of any Member of the Seller Group or the Target Group in so doing connection with this Agreement or its subject matter. For the Escrow Holder avoidance of doubt, the limitations set forth in this clause 10.1 shall not be or become liable for damages or interest to the undersigned or any of them, or apply to any person named rights or claims of the Buyer Group, Seller Group or Target Group arising under or in these Instructions, for its refusal to comply connection with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights first sentence of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
clause 12.1, (ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interested.
clause 12.5, or (iii) In the event Confidentiality and Non Solicitation Agreement dated as of the date hereof by and among the Buyer, Syniverse and certain members of the Seller Group as identified therein (the “Confidentiality and Non Solicitation Agreement”).
10.2 None of the Warranties, covenants or agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive Completion, except for covenants and agreements which, by their terms, are to be performed after Completion.
10.3 The Buyer has received or been given access by the Seller to any and all information it has requested with respect to the Target Group prior to entering into this Agreement, and has had sufficient time and opportunity to perform and has performed all such disagreementinvestigation and due diligence regarding the Seller, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for Target Group and the purpose of having the respective rights business of the claimants adjudicated, Target Group as it deems to be necessary and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonsufficient prior to entering into this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Syniverse Technologies Inc)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Asset Pool One Supplement is executed and delivered by the Escrow Holder shall incur no Liability Transferor not individually or personally but solely as Beneficiary under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (except ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as a personal representation, undertaking or agreement by the Transferor or Chase USA but is made and intended for acts the purpose of gross negligence binding only the Issuing Entity, (iii) nothing herein contained will be construed as creating any liability on the Transferor or willful misconductChase USA individually or personally, to perform any covenant of the Issuing Entity either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties to the Indenture and by any Person claiming by, through or under them and (iv) and be under no obligation to take circumstances will the Transferor or Chase USA be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuing Entity or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuing Entity under this Asset Pool One Supplement or any related documents.
(b) None of the provisions hereof shall be construed so as to require Collateral Agent, the Escrow Agent to expend Indenture Trustee, the Owner Trustee, the Transferor, Chase USA or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out other Beneficiary of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Issuing Entity or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Asset Pool One Supplement, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder recourse may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest had solely to the undersigned or any of them, or Collateral pledged to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and secure the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedAsset Pool One Notes under this Asset Pool One Supplement.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood In consideration of the benefits accruing to Tenant under this Lease, T▇▇▇▇▇ and agreed all successors and assigns covenant and agree that, in the event of any actual or alleged failure, breach, of default under this Lease by Landlord or otherwise relating to T▇▇▇▇▇’s tenancy under this Lease, the following limitations will apply:
(i) Tenant’s sole and exclusive remedy against Landlord will be against L▇▇▇▇▇▇▇’s interest in that portion of the Escrow Holder Building owned by Landlord, and Tenant shall incur in no Liability event be entitled to recover consequential, indirect, special, exemplary, or punitive damages;
(except ii) The obligations of Landlord under this Lease do not constitute personal obligations of the individual partners, directors, officers, agents, or shareholders of Landlord, and Tenant may not seek recourse against the individual partners, directors, officers, agents, or shareholders of Landlord or any of their personal assets for acts satisfaction of gross negligence any liability in respect to this Lease;
(iii) These covenants and agreements are enforceable both by Landlord and also by any officer, director, shareholder, agent, or willful misconductpartner of Landlord.
(iv) If Landlord sells or transfers any portion of the Premises, Landlord, on consummation of the sale or transfer, will be released from any liability thereafter accruing under this Lease. If a Security Deposit or Prepaid Rent has been paid by Tenant, Landlord shall transfer the Security Deposit and/or Prepaid Rent to Landlord’s successor-in-interest and on such transfer Landlord will be under no obligation to take discharged from any steps further liability arising from the Security Deposit or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderPrepaid Rent.
(b) None Similarly, in consideration of the provisions hereof shall be construed so as benefits accruing to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties Landlord under these Instructions this Lease, Landlord and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees all successors and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofassigns covenant and agree that, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute actual or questions as alleged failure, breach, of default under this Lease by Tenant or otherwise relating to Tenant’s tenancy under this Lease, the interpretation obligations of Tenant under this Lease do not constitute personal obligations of the individual partners, directors, officers, agents, or construction shareholders of these Instructions or the Escrow Holder’s duties hereunderTenant, and Landlord may not seek recourse against the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions individual partners, directors, officers, agents, or shareholders of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned Tenant or any of them, or their personal assets for satisfaction of any liability in respect to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Lease.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Limitations on Liability. (a) It is understood Each of the Company and agreed Optionee agrees that, from and after the date hereof, except with respect to remedies that the Escrow Holder shall incur no Liability cannot be waived as a matter of law (except for acts of gross negligence or willful misconductincluding fraud) and injunctive and provisional relief (including specific performance), this Article VI shall be under no obligation the exclusive remedy with respect to take any steps breaches of the representations and warranties set forth in this Agreement. No current or action (whether by commencement former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of legal proceedings the Company shall have any Liability of any nature to an Optionee Indemnitee with respect to any breach of any representation, warranty, covenant or otherwise) agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement. No current or former stockholder, director, officer, employee, agent, consultant, Affiliate or advisor of Optionee shall have any Liability of any nature to insure that any funds are actually received by the Escrow HolderCompany Indemnitee with respect to any breach of any representation, warranty, covenant or agreement contained in, or any other claims based upon, arising out of, or otherwise in respect of, this Agreement.
(b) None Without limiting the effect of any other limitation contained in this Article VI, the indemnification provided for in Section 6.2 shall not apply except to the extent that the aggregate Damages against which an Optionee Indemnitee would otherwise be entitled to be indemnified under this Article VI exceeds **** percent of the provisions hereof shall Indemnity Cap (the “Basket”), in which event the Optionee Indemnitee shall, subject to the other limitations contained herein, be construed so as entitled to require be indemnified only against the Escrow Agent to expend or risk any portion of its own funds or otherwise incur any liability such Damages in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out excess of the funds received by it (after deduction Basket; provided, however, the Basket shall not apply to any claims related to a breach of its fees and expenses)any Fundamental Representation.
(c) If it becomes illegal For purposes of computing the amount of any Damages incurred by an Optionee Indemnitee under this Article VI, there shall be deducted an amount equal to the amount of any insurance proceeds actually received or impossible for reasonably expected to be received by the Escrow Holder to carry out Optionee Indemnitee or any of its Affiliates in connection with such Damages or any of the provisions hereof, circumstances giving rise thereto (it being understood that the Escrow Agent Optionee Indemnitee and any of its Affiliates shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred use commercially reasonable efforts to hereinobtain such proceeds).
(d) The Escrow Holder Nothing in this Section 6.3 shall not be required limit, and neither the Indemnity Cap nor the Basket shall apply to, any remedy Optionee or the Company may have against any Person for actual fraud involving a knowing and intentional misrepresentation of a fact material to take the transactions contemplated by this Agreement made with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge, negligent misrepresentation or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned or any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilitysimilar theory) under applicable tort laws.
(e) The Escrow Holder Optionee shall not be liable to any party hereto in acting upon any have the right, exercisable by delivery of written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished notice to the Escrow Holder by R▇▇▇Company delivered on or prior to the Closing Date, B▇▇▇▇▇ H▇▇▇ or to setoff against the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
Closing Payment Amount (f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel as defined in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(hMerger Agreement) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest an amount equal to the undersigned or any aggregate amount of themall Damages relating to claims for indemnification made by an Optionee Indemnitee pursuant to this [*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, or to any person named in these InstructionsWHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK ****, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedHAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.]
Appears in 1 contract
Limitations on Liability. (a) The Servicer shall discharge its duties hereunder and under the Power of Attorney with appropriate skill and care, but shall have no liability with respect to, and shall not be obligated to indemnify or hold harmless any party including, without limitation, the Trust or any of its affiliates, employees, agents or other representatives from or against, any cost, expense, damage or liability arising out of or otherwise in respect of the performance of the Services or under the Power of Attorney. It is expressly understood and agreed by the parties hereto that the Escrow Holder Servicer shall incur no Liability not be liable for the obligations of the Trust other than as provided in this Agreement. Without limiting the foregoing, the Trust shall indemnify the Servicer, its affiliates, stockholders, directors, officers, employees, agents and representatives (except for acts of gross negligence or willful misconductcol lectively, the "Indemnified Parties") and be under no obligation to take hold them harmless from and against ------------------- any steps or action and all losses, liabilities, claims, damages and expenses (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow Holder.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its including reasonable attorney's fees and expenses).
(c) If it becomes illegal suffered or impossible for the Escrow Holder to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof incurred by or on behalf of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Indemnified Party arising out of or be bound by notice of default based upon the defense of any person, claim or to take any action litigation brought by a third party with respect to such default is given to Escrow Holder the performance by any Indemnified Party of their obligations under this Agreement or under the undersigned or any Power of themAttorney; provided, unless however, that the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder Trust shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished -------- ------- Indemnified Party to the Escrow Holder extent that liability of any Indemnified Party arises primarily from such party's material breach of this Agreement by R▇▇▇bad faith, B▇▇▇▇▇ H▇▇▇ fraud, willful misconduct or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereundergross negligence.
(fb) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, It is expressly understood and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne agreed by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
parties hereto that (i) the rights this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Trustee of the adverse claimants have been finally adjudicated Trust under the Trust Agreement, in a court or by arbitration as set forth below assuming and having jurisdiction the exercise of the parties powers and the money involved herein authority conferred and affected hereby; or
vested in it thereby, (ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all each of the persons interested.
(iii) In representations, undertakings and agreements herein made on the event part of such disagreementthe Trust is made and intended not as a personal representation, the Escrow Holder, in its discretion, may file suit in interpleader undertaking or for declaratory relief agreement by Wilmington Trust Company but is made and intended for the purpose of having binding only the respective rights Trust, (iii) except as Wilmington Trust Company shall otherwise expressly agree, nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressly or impliedly contained herein, all such liability, if any, being expressly waived by the Servicer and by any person claiming by, through or under it and (iv) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expense of the claimants adjudicatedTrust or be liable for the breach or failure of any obligation, and deposit with representation, warranty or covenant made or undertaken by the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against Trust under this Agreement or the interpled funds and shall constitute a lien thereonTrust Agreement.
Appears in 1 contract
Sources: Administration and Servicing Agreement (Harrys Farmers Market Inc)
Limitations on Liability. Notwithstanding any other provision of this Agreement or any right or remedy available under any Law:
(a) It is understood The Purchaser Indemnified Parties shall have the right to payment by the Seller under Section 12.2(a) only if, and agreed only to the extent that, the Purchaser Indemnified Parties shall have incurred indemnifiable Losses in excess of $424,000 and then only for the amounts in excess thereof; provided, however, that the Escrow Holder foregoing limitation shall incur no Liability not apply with respect to any indemnifiable Losses under Sections 12.2(b), (except for acts c) or (d) or relating to a breach or inaccuracy of gross negligence any Tax Warranty, Environmental Warranty or willful misconduct) Title and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderAuthorization Warranty.
(b) None of Neither the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk Seller nor any of its own funds Affiliates shall have any liability under or otherwise incur any liability in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the performance aggregate; provided, however, that the foregoing limitation shall not apply with respect to any indemnifiable Losses under Sections 12.2(b), (c) or (d) or relating to a breach or inaccuracy of its duties under these Instructions any Tax Warranty, Environmental Warranty or Title and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)Authorization Warranty.
(c) If it becomes illegal or impossible for Neither the Escrow Holder to carry out Seller nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the provisions hereofRelated Agreements or the transactions contemplated hereby or thereby in excess of $42,400,000 (“Cap”) in the aggregate; provided, the Escrow Agent however, that such Cap shall incur no liability as a consequence not apply to any indemnifiable Losses under (i) Section 12.2(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the enforceability of lack thereof of any agreements referred to hereinSeller under the Transition Services Agreement, which shall be governed by the limitations set forth therein), or (ii) Sections 12.2(c) or (d).
(d) The Escrow Holder Seller Indemnified Parties shall have the right to payment by the Purchaser under Section 12.3(a) only if, and only to the extent that, the Seller Indemnified Parties shall have incurred indemnifiable Losses in excess of $424,000 and then only for the amounts in excess thereof; provided, however, that the foregoing limitation shall not be required to take or be bound by notice of default of any person, or to take any action apply with respect to such default is given any indemnifiable Losses under Sections 12.3(b), (c) or (d) or relating to Escrow Holder by the undersigned a breach or inaccuracy of any of them, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liabilityTitle and Authorization Warranty.
(e) The Escrow Holder Neither the Purchaser nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the aggregate; provided, however, that the foregoing limitation shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability apply with respect to any good faith action taken indemnifiable Losses under Sections 12.3(b), (c) or allowed by it hereunder(d) or relating to a breach or inaccuracy of any Title and Authorization Warranty.
(f) The Escrow Holder Neither the Purchaser nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of the Cap in the aggregate; provided, however, that such Cap shall not apply to any indemnifiable Losses under (i) Section 12.3(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the Purchaser under the Transition Services Agreement, which shall be liable for any error or judgment or for act done or step taken or omitted governed by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconductthe limitations set forth therein), or for anything which it may do (ii) Sections 12.3(c) or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions(d).
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunderIN NO EVENT SHALL THE SELLER OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY UNDER THIS AGREEMENT, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories heretoANY RELATED AGREEMENT (OTHER THAN THE TRANSITION SERVICES AGREEMENT) OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR ANY SPECIAL, other than the Escrow HolderSPECULATIVE, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE), WHETHER OR NOT THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(h) In WITH THE EXCEPTION OF REMEDIES BASED ON FRAUD, THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE SELLER AND ITS AFFILIATES TO THE PURCHASER AND ITS AFFILIATES AND THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE PURCHASER AND ITS AFFILIATES TO THE SELLER AND ITS AFFILIATES UNDER OR IN CONNECTION WITH THE ASSETS, THE BUSINESS, THIS AGREEMENT, THE RELATED AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING FOR ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY OR FOR ANY BREACH OF ANY COVENANT OR OBLIGATION OR FOR ANY OTHER REASON), AND THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER AND ITS AFFILIATES WITH RESPECT TO ANY OF THE FOREGOING, SHALL BE AS SET FORTH IN THIS ARTICLE XII, or in ARTICLE XV of the event of any disagreement between Transition Services Agreement, as applicable. To the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned extent that either party hereto or any of themits Affiliates has any Losses for which it may assert any other right to indemnification, contribution or recovery from the other party hereto or any of its Affiliates (whether under this Agreement or under any common law theory or any statute or other Law), such party hereby waives, releases and agrees not to assert such right, and such party agrees to cause each of its Affiliates to waive, release and agree not to assert such right, regardless of the theory upon which any person named in these Instructionsclaim may be based, for its refusal to comply with such conflicting whether contract, equity, tort, fraud, warranty, strict liability or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:any other theory of liability.
(i) Neither the rights Seller nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the adverse claimants have been finally adjudicated in Related Agreements or the transactions contemplated hereby or thereby for any Loss (i) to the extent arising as a court result of any action taken or omitted to be taken by arbitration as set forth below assuming and having jurisdiction the Purchaser or any of the parties and the money involved herein and affected hereby; or
its Affiliates, (ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all with respect to any representation or warranty of the persons interested.
Seller herein to the extent arising from or relating to any matter disclosed on the Schedules to this Agreement corresponding to such representation or warranty and (iii) In to the event extent accrued, provided or reserved for in the Business Financial Statements or the Final Closing Statement of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereonInventory.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Limitations on Liability. (a) It is expressly understood and agreed by the parties hereto that (i) this Terms Document is executed and delivered by the Escrow Holder shall incur Owner Trustee not individually or personally but solely as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Owner Trustee individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability, if any, being expressly waived by the parties to this Terms Document and by any Person claiming by, through or under them, (iv) the Owner Trustee has made no Liability investigation as to the accuracy or completeness of any representations and warranties made by the Trust in the Agreement and (except for acts of gross negligence or willful misconductv) and be under no obligation to take circumstances will the Owner Trustee be personally liable for the payment of any steps indebtedness or action (whether by commencement expenses of legal proceedings the Issuer or otherwise) to insure that be liable for the breach or failure of any funds are actually received obligation, representation, warranty or covenant made or undertaken by the Escrow HolderIssuer under this Terms Document or any related documents.
(b) None of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses).
(c) If it becomes illegal or impossible for the Escrow Holder to carry out any of the provisions hereofIndenture Trustee, the Escrow Agent shall incur no liability as a consequence of Owner Trustee, the enforceability of lack thereof of Calculation Agent, the Beneficiary, the Depositor, any agreements referred to herein.
(d) The Escrow Holder shall not be required to take Master Servicer or be bound by notice of default of any person, or to take any action with respect to such default is given to Escrow Holder by the undersigned Servicer or any of themtheir respective officers, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense directors, employees, incorporators or liability.
(e) The Escrow Holder shall not be liable to agents will have any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewiththis Terms Document, and recourse may be had solely to the Escrow Holder shall have no duties Collateral pledged to anyone except those signing secure these Instructions.
(gClass A(2023- 2) The Escrow Holder may consult with legal counsel in Notes under the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected herebyIndenture, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, Indenture Supplement and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned or any of them, or to any person named in these Instructions, for its refusal to comply with such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis Terms Document.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Indenture Supplement
Limitations on Liability. (a) It is understood From and agreed that after the Effective Time, the right of any Buyer Party to be indemnified from the Indemnity Escrow Holder Fund pursuant to this Article X shall incur no Liability (except for acts be, subject to Section 10.2(b), the sole and exclusive remedy with respect to any breach of gross negligence any representation or willful misconduct) and be under no obligation to take warranty of the Company or Pace contained in, or any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received other breach by the Company or Pace of, this Agreement or any certificate delivered by the Company or Pace pursuant to this Agreement. Subject to Section 10.2(b), no current or former stockholder, director, officer, employee, affiliate or advisor of the Company shall have any Liability of any nature to Parent, the Surviving Corporation or any Affiliate of Parent or the Surviving Corporation with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement. Notwithstanding anything contained herein to the contrary but subject to Section 10.2(b), the maximum aggregate Liability pursuant to this Article X or otherwise in connection with this Agreement and/or the transactions contemplated hereby of the Equityholders and Pace to Parent or Merger Sub shall be limited to amounts then held in the Indemnity Escrow HolderFund, except in the case of Section 2.8 hereof, in which case, the Working Capital Escrow Fund shall be the sole and exclusive remedy of the Buyer Parties with respect to the difference between the Final Net Working Capital and the Estimated Net Working Capital.
(b) None From and after the Effective Time, the right of the provisions hereof Equityholders to be indemnified pursuant to this Article X shall be construed so as the sole and exclusive remedy with respect to require the Escrow Agent to expend any breach of any representation or risk warranty of Parent or Merger Sub contained in, or any of its own funds other breach by Parent or otherwise incur any liability Merger Sub of, this Agreement, except in the performance case of its duties under these Instructions Section 2.8 hereof, in which case, the provisions of Section 2.8 shall govern the Equityholders remedies with respect to the difference between the Final Net Working Capital and it the Estimated Net Working Capital. No current or former stockholder, director, officer, employee, affiliate or advisor of Parent or Merger Sub (other than Parent and Merger Sub) shall be under no obligation have any Liability of any nature to make any payment except out Equityholder or any Affiliate of the funds received by it (after deduction any Equityholder with respect to any breach of its fees and expenses)any representation or warranty contained in, or any other breach of, this Agreement.
(c) If it becomes illegal Without limiting the effect of any other limitation contained in this Article X, the indemnification provided for in Sections 10.2(a) (but excluding Section 10.2(b)) shall not apply except to the extent that the aggregate Damages against which the Buyer Parties would otherwise be entitled to be indemnified under this Article X exceeds Seven Hundred Fifty Thousand Dollars ($750,000), in which event the Buyer Parties shall, subject to the other limitations contained herein, be entitled to be indemnified only against the portion of such Damages in excess Three Hundred Seventy Five Thousand Dollars ($375,000). Subject to Section 10.2(b), (i) any amounts payable by the Equityholders or impossible for otherwise to Parent or Merger Sub pursuant to this Section 10.3 shall be paid solely and exclusively from the Indemnity Escrow Fund in accordance with the terms of the Escrow Holder Agreement and (ii) no holder of Company Common Stock, Company Option or any other Person shall be liable for any deficiency with respect to carry out any of the provisions hereof, the Escrow Agent shall incur no liability as a consequence of the enforceability of lack thereof of any agreements referred indemnity pursuant to hereinthis Section 10.3.
(d) The Escrow Holder shall not be required to take or be bound by notice of default Without limiting the effect of any personother limitation contained in this Article X, or to take for purposes of computing the amount of any action with respect to Damages incurred by any Buyer Party under this Article X, there shall be deducted: (i) any tax benefit actually realized by such default is given to Escrow Holder by the undersigned Buyer Party or any of themits Affiliates in connection with such Damages or any of the circumstances giving rise thereto; and (ii) an amount equal to the amount of any insurance proceeds, unless indemnification payments, contribution payments or reimbursements received or reasonably expected to be realized by such Buyer Party or any of its Affiliates in connection with such Damages or any of the Escrow Holder circumstances giving rise thereto (it being understood that such Buyer Party and any of its Affiliates shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements prior to seeking indemnification under this Article X). The calculation of Damages shall not include losses arising because of a change after Closing in Law or accounting principle. To the extent that a claim for indemnification by Parent or Merger Sub hereunder relates to a Liability incurred by the Company and there is indemnified an accrual on the Current Balance Sheet in a manner satisfactory to it against respect of such expense or liabilityLiability, then the determination of Damages in respect of such claim shall be net of such accrual.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability with respect to any good faith action taken or allowed by it hereunder[Reserved].
(f) The Escrow Holder Nothing in this Section 10.3 shall not be liable for limit any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow Holder’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, and any other person, resulting in adverse claims and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, and in so doing the Escrow Holder shall not be or become liable for damages or interest to the undersigned remedy Parent or any of them, or the Equityholders may have against any Person for actual fraud involving a knowing and intentional misrepresentation of a fact material to the transactions contemplated by this Agreement made with the intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any person named in these Instructionsfraud claim based on constructive knowledge, for its refusal to comply with such conflicting negligent misrepresentation or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(ia similar theory) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedunder applicable tort laws.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract
Sources: Merger Agreement (Blackboard Inc)
Limitations on Liability. (a) It is understood and agreed that the Escrow Holder shall incur no Liability (except for acts of gross negligence or willful misconduct) and be under no obligation to take any steps or action (whether by commencement of legal proceedings or otherwise) to insure that any funds are actually received by the Escrow HolderIN NO EVENT SHALL ANY PARTY HERETO NOR ANY AFFILIATE OF ANY PARTY HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, INDIRECT, REMOTE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST PROFITS OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS OR DIMINUTION IN VALUE OR ANY SIMILAR DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
(b) None If the Closing occurs, in no event shall any Party be entitled to rescission of the provisions hereof shall be construed so as to require the Escrow Agent to expend or risk any of its own funds or otherwise incur any liability in the performance of its duties under these Instructions and it shall be under no obligation to make any payment except out of the funds received by it (after deduction of its fees and expenses)transactions consummated hereby.
(c) If it becomes illegal or impossible for the Escrow Holder As a material inducement to carry out any Seller to enter into this Agreement, effective as of the provisions hereofClosing, the Escrow Agent shall incur no liability as a consequence Purchaser, on its own behalf and on behalf of the enforceability each of lack thereof its Affiliates, agrees not to ▇▇▇ and fully releases and forever discharges Seller and each of any agreements referred to herein.
(d) The Escrow Holder shall not be required to take or be bound by notice its Affiliates and each of default of any persontheir respective directors, or to take any action officers, employees, members, managers, shareholders, agents, assigns and successors, past and present, with respect to such default is given and from any and all Proceedings, demands, rights, liens, Contracts, covenants, Liabilities, debts, expenses (including reasonable attorneys’ fees) and Losses of whatever kind or nature in law, equity or otherwise, whether now known or unknown, and whether or not concealed or hidden, including in respect of any and all Environmental Liabilities; provided, that nothing in this Section 8.4 shall prohibit Purchaser from enforcing its rights under this Agreement. Without limiting the generality of the foregoing, Purchaser hereby waives, releases and agrees not to Escrow Holder by the undersigned make any claim or bring any of themcontribution, unless the Escrow Holder is indemnified in a manner satisfactory to it against such expense or liability.
(e) The Escrow Holder shall not be liable to any party hereto in acting upon any written notice, request, waiver, consent, receipt cost recovery or other paper or document believed by the Escrow Holder to be signed by the proper party or parties. The Escrow Holder will be entitled to treat as genuine and as the document it purports to be any letter, paper, telex, or other document furnished or caused to be furnished to the Escrow Holder by R▇▇▇, B▇▇▇▇▇ H▇▇▇ or the Bank, and believed by the Escrow Holder to be genuine and to have been transmitted by the proper party or parties. The Escrow Holder shall have no liability action against Seller with respect to any good faith action taken or allowed by it hereunder.
(f) The Escrow Holder shall not be liable for any error or judgment or for act done or step taken or omitted by it in good faith or for any mistake or fact or law (except for acts of gross negligence or willful misconduct), or for anything which it may do or refrain from doing in connection herewith, and the Escrow Holder shall have no duties to anyone except those signing these Instructions.
(g) The Escrow Holder may consult with legal counsel in the event of any dispute or questions as the interpretation or construction of these Instructions or the Escrow HolderSeller’s duties hereunder, and the Escrow Holder shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. Any fees or costs so incurred shall be borne by the signatories hereto, other than the Escrow Holder.
(h) In the event of any disagreement between the undersigned or any person or persons named in these Instructions, obligations under this Agreement and any other person, resulting Related Agreement or any facts or circumstances in adverse claims existence prior to the Closing. It is the intention of Purchaser that such release be effective as a bar to each and demands being made in connection with or for any money involved herein or affected hereby, the Escrow Holder shall be entitled at its option to refuse to comply with any such claims or demands, so longs as such disagreement shall continue, every demand and Proceeding hereinabove specified and in so doing furtherance of such intention, Purchaser, on its own behalf and on behalf of its Affiliates, hereby expressly waives, effective as of the Escrow Holder shall not Closing, any and all rights and benefits conferred upon such Person by the provisions of applicable Law and expressly agrees that this release will be or become liable for damages or interest given full force and effect according to each and all of its express terms and provisions, including those related to unknown and unsuspected demands an Proceedings, if any, as those related to unknown and unsuspected demands and Proceedings, if any, as those relating to any other demands and Proceedings hereinabove specified, but only to the undersigned or any of them, or extent such provision is applicable to any person named in these Instructions, for its refusal to comply with releases such conflicting or adverse demands; and the Escrow Holder shall be entitled to continue so to refrain and refuse to act until:
(i) the rights of the adverse claimants have been finally adjudicated in a court or by arbitration as set forth below assuming and having jurisdiction of the parties and the money involved herein and affected hereby; or
(ii) all differences have been adjudicated by agreement and the Escrow Holder has been notified thereof in writing by all of the persons interestedthis.
(iii) In the event of such disagreement, the Escrow Holder, in its discretion, may file suit in interpleader or for declaratory relief for the purpose of having the respective rights of the claimants adjudicated, and deposit with the court all documents and property held hereunder, and Escrow Holder’s fee and all reasonable costs and reasonable counsel fees incurred in such action and said costs and fees shall be payable against the interpled funds and shall constitute a lien thereon.
Appears in 1 contract