The Calculation Agent Sample Clauses

The Calculation Agent. (a) The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. as Calculation Agent, and authorizes the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records set forth in Section 2.01(f). (ii) The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c) Any successor Calculation Agent shall be appointed by the Administrative Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”), such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, liability or expense (including reasonable attorneys’ fees) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any investigation, claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement (except to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA Party) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shall

Appears in 2 contracts

Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)

The Calculation Agent. (a) ~~The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank~~Computershare Trust Company, N.A. is hereby appointed as Calculation ~~Agent,~~ Agent and ~~authorizes the Calculation Agent~~ is authorized to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) ~~determining~~ calculating the ~~LIBOR~~ Term SOFR Rate ~~and SWAP~~ or, following a conversion to the Alternate Rate or the Prime Rate pursuant to Section 2.04, the Alternate Rate or the Prime Rate, hereunder (based upon the information provided by the Administrative Agent) and (C) maintaining the records set forth in Section ~~2.01(f~~2.01(e). (ii) The ~~Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The~~ Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculationsas set forth herein. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the ~~Modeling~~ verification conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the ~~Borrowers~~ Borrowers, the Borrower Representative and the Administrative Agent, and the Calculation Agent shall work with such parties in good faith to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the ~~Borrowers~~ Borrowers, the Borrower Representative and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect, except to the extent of the Calculation Agent’s bad faith, gross negligence or willful misconduct. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, ~~liability~~ liability, damage or expense of Lenders (including reasonable and documented out-of-pocket attorneys’ fees and expenses) incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section ~~2.06(c)(ii~~2.07(c)(ii). (c) Any successor ~~Calculation Agent~~ calculation agent shall be appointed by the Administrative Agent (subject to the approval of the Borrower Representative (not to be unreasonably withheld) so long as no Event of Default has occurred and is then continuing) subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent ~~shall have the right to approve in its sole discretion (following consultation with~~ and the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) shall mutually agree on the fees ~~(including any adjustments or modifications thereto)~~ required to engage the services of any such successor calculation agent to the extent that such fees exceed those paid to the prior Calculation Agent and upon ~~written notice to the Borrower Representative (a “Calculation Agent Fee Notice”)~~such mutual agreement, such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall jointly and severally indemnify the Calculation Agent and its officers, directors, ~~employees~~ employees, affiliates and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, ~~liability~~ liability, damages, costs or expense (including reasonable and documented out-of-pocket external attorneys’ ~~fees~~fees and expenses) ~~incurred~~ incurred, expended or advanced in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the reasonable costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) of (A) investigating any claim, dispute or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) without duplication of any amount incurred in connection with (A) above, preparing for, and prosecuting or defending itself against any claim, dispute, investigation, legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement~~ Agreement; (ii) pursuing enforcement (including by means of any action, claim, or suit brought by the Calculation Agent for such purpose) of any indemnification or other obligation of the Borrowers (the indemnification afforded under this clause (ii) to include, without limitation, any reasonable and documented out-of-pocket external legal fees, costs and expenses incurred by the Calculation Agent in connection therewith); and (iii) the gross negligence, willful misconduct or bad faith of any Borrower in the performance of its duties hereunder, except in each case to the extent any such loss, ~~liability~~ liability, damages, costs or expense results from the gross negligence, willful misconduct or ~~fraud~~ bad faith of the Calculation Agent or any CA ~~Party) and~~ Party (~~ii)~~ in each case, as determined by a court of competent jurisdiction pursuant or as otherwise agreed to by the ~~gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder~~parties). All such indemnification amounts shall be payable in accordance with Section ~~2.06~~2.07. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section ~~2.06~~ 2.07 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. The foregoing indemnification shall survive the termination or assignment of this Agreement and the resignation or removal of the Calculation Agent. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent, and no permissive right or privilege of the Calculation Agent ~~and, in~~ shall be construed as a duty or obligation. In the absence of gross negligence, willful misconduct or ~~fraud~~ bad faith on the part of the Calculation Agent, the Calculation Agent may conclusively rely on and shall be protected in relying upon the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers, employees, agents, affiliates or attorneys; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or ~~rights~~ rights, privileges or powers conferred by this Agreement or at the written direction of ~~a Secured Party~~ the Administrative Agent relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in ~~fraud~~ bad faith or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section ~~2.19~~2.20, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to ~~confirm~~ confirm, recalculate or verify the ~~contents~~ contents, accuracy or completeness of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ (or any other party’s) representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, any certificate of a Responsible Officer, any report, any certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. In connection with any request that the Calculation Agent take any action or refrain from taking any action, in either case not in conformity with and outside the scope of this Agreement, the Calculation Agent shall be entitled to request from the requesting party and to conclusively rely upon, and shall be protected in acting or refraining from acting upon, an officer’s certificate or opinion of counsel delivered by or on behalf of such requesting party. Any opinion of counsel requested by the Calculation Agent shall be an expense of the Borrowers. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, ~~powers~~ powers, privileges or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent ~~or any Lender~~ pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, ~~or such Lender~~ shall have offered to the Calculation Agent ~~reasonable~~ security or indemnity reasonably satisfactory to the Calculation Agent against the fees, costs, expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any review or investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by ~~a Lender or~~ the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the fees, costs, expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require ~~reasonable~~ security or indemnity reasonably satisfactory to the Calculation Agent from the Lenders against such fee, cost, expense (including reasonable and documented out-of-pocket attorneys’ fees and expenses) or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section ~~2.06~~2.07. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Paying Agent (unless the same entity is then acting as Calculation Agent and Paying Agent), the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely without liability on the instructions of the Administrative Agent. In the absence of ~~fraud~~bad faith, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely upon and shall be protected in acting or refraining from acting based upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, ~~notice~~ notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shallsta

Appears in 2 contracts

Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)

The Calculation Agent. (a) The ~~Administrative Agent~~ Lenders hereby ~~appoints ▇▇▇▇▇ Fargo~~ appoint JPMorgan Chase Bank, ~~N.A.~~ National Association as Calculation Agent, and ~~authorizes~~ authorize the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental ~~thereto~~thereto and JPMorgan Chase Bank, National Association hereby accepts such appointment. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records those duties expressly set forth in ~~Section 2.01(f)~~this Agreement. (ii) The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers or the Borrower Representative and the results of the ~~Modeling~~ reviews thereof conducted by the Calculation Agent as reflected in any reports provided by the Calculation Agent, ~~the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and~~ the Calculation Agent shall work with such parties to resolve such discrepancy~~. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent~~. (iviii) Each of the Borrowers, the Borrower Representative, the Lenders and the ~~Administrative~~ Agent agree that so long as the Calculation Agent complies with the terms of ~~clauses~~ clause (ii~~) and (iii~~) above, the Calculation Agent shall have no liability with respect to any ~~Calculations~~ calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (~~iii~~ii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) ~~On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c)~~ Any successor Calculation Agent shall be appointed by the ~~Administrative~~ Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the ~~Majority~~ Required Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the ~~Majority~~ Required Lenders consent thereto). The ~~Administrative Agent~~ Required Lenders shall have the right to approve in ~~its~~ their respective sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and ~~upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”),~~ such approved fee shall constitute the Calculation Agent Fee. (dc) The ~~Borrowers shall indemnify the~~ Calculation Agent shall be entitled to indemnification, pursuant to Section 2.8(b)(iii), from and ~~its officers~~against any and all liabilities, ~~directors~~obligations, ~~employees and agents (each~~losses, ~~a “CA Party” and collectively~~damages, ~~the “CA Parties”) for~~penalties, ~~and hold them harmless against~~actions, judgments, suits, costs, expenses or disbursements of any ~~loss, liability or expense~~ kind whatsoever (including litigation costs and reasonable attorneys’ ~~fees~~fees and expenses) ~~incurred in connection with or arising out~~ which may at any time (including at any time following the payment of ~~(i)~~ the ~~performance of its~~ obligations under ~~and in accordance with~~ this Agreement, including the ~~costs and expenses~~ Advances Outstanding) be imposed on, incurred by or asserted against the Calculation Agent in any way relating to or arising out of ~~defending itself against~~ this Agreement, or any ~~investigation, claim~~ documents contemplated by or ~~liability~~ referred to herein or the transactions contemplated hereby or any action taken or omitted by the Calculation Agent under or in connection with any of the ~~exercise or performance~~ foregoing; provided, that the Calculation Agent shall not be entitled to the payment of any such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of the Agent resulting from its ~~powers or duties under this Agreement (except to the extent any such loss, liability or expense results from the~~ own gross negligence, willful misconduct or ~~fraud~~ fraud. The provisions of this Section shall survive the payment of the Obligations, the termination of this Agreement, and any resignation or removal of the Calculation Agent or any CA Party) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection AccountAgent. (ed) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the ~~Administrative Agent~~ Agent, the Borrower Representative or the Borrowers. (fe) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (gf) The Calculation Agent shall not be charged with knowledge of any Early Amortization Event, Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the ~~Administrative~~ Agent, as the case may be. (hg) Without limiting the generality of this Section ~~2.19~~2.15, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, ~~Real Estate Taxes, assessment~~ real property taxes or assessments or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the ~~Assets~~Collateral, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the ~~Administrative~~ Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (ih) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (ji) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (kj) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (lk) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the ~~Administrative~~ Agent or any Lender pursuant to the provisions of this Agreement, unless the ~~Administrative~~ Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (ml) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by ~~a Lender or~~ the ~~Administrative~~ Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such ~~examination~~ investigation shall be paid by the ~~Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06~~Borrowers. (nm) The Calculation Agent shall not be responsible for the acts or omissions of the ~~Administrative~~ Agent, the Borrowers, ~~any Lenders~~the Borrower Representative, the Property Manager, the Back-Up Manager, any ~~Counterparty~~ Lender or any other Person. (on) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to the Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (po) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (qp) If the Calculation Agent shall at any time receive conflicting instructions from the ~~Administrative~~ Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the ~~Administrative~~ Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any ~~Monthly~~ monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (rq) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (tr) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 thirty (30) days’ prior written notice to the Borrowers, the Lenders and the ~~Administrative Agent (together with a copy of such notice posted to a Data Site)~~Agent; provided, however, that, without the consent of the ~~Administrative~~ Agent and the ~~Majority~~ Required Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the ~~Administrative Agent, and to whose appointment the Majority~~ Required Lenders ~~do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto),~~ shall have accepted appointment as Calculation Agent, pursuant hereto and ~~shall~~shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time by written demand of the Agent upon sixty (60) days’ notice, delivered to the Calculation Agent, the Lenders and the Borrower Representative; provided, however, that, such removal shall not be effective until the appointment of a successor Calculation Agent acceptable to the Required Lenders. In the event of such termination or removal, the Agent shall make reasonable efforts to appoint a successor calculation agent. If, however, a successor calculation agent is not appointed by the Agent within sixty (60) days after the giving of a notice of resignation, the Agent may petition a court of competent jurisdiction for the appointment of a successor calculation agent. (s) Any successor Calculation Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Agent and to the predecessor Calculation Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Calculation Agent shall become effective and such successor Calculation Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Calculation Agent under this Agreement, with like effect as if originally named as Calculation Agent. The predecessor Calculation Agent shall upon payment of its fees and expenses deliver to the successor Calculation Agent all documents and statements and monies held by it under this Agreement; and the Agent and the predecessor Calculation Agent shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Calculation Agent all such rights, powers, duties, and obligations. (t) In the event the Calculation Agent’s appointment hereunder is terminated without cause, the Borrowers shall (i) reimburse the Calculation Agent for the reasonable out-of-pocket expenses of the Calculation Agent incurred in connection with such termination and the related succession by the successor Calculation Agent. (u) The Loan Parties hereby agree, in connection with an appointment of a successor Calculation Agent, to negotiate in good faith any modifications to this Agreement reasonably requested by such successor Calculation Agent.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)

The Calculation Agent. (a) The ~~Administrative Agent~~ Lenders hereby ~~appoints ▇▇▇▇▇ Fargo~~ appoint JPMorgan Chase Bank, National AssociationComputershare Trust Company, N.A. in its capacity as Calculation Agent, and ~~authorizes~~ authorize the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental ~~thereto~~thereto and JPMorgan Chase Bank, National AssociationComputershare Trust Company, N.A. ▇▇▇▇▇▇ accepts such appointment. (i) The duties of the Calculation Agent hereunder shall be limited to ~~(A) verifying the calculations of the~~ those duties expressly set forth in this Agreement. On each Payment Date, Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided shall pay to the Calculation Agent by any Calculation Agent Fee and any and all other amounts due and payable to the ~~Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the LIBOR Rate and SWAP Rate~~ Calculation Agent hereunder ~~and (C) maintaining the records set forth in~~ pursuant to Section ~~2.01(f~~2.8(b)(iii). (ii) The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers or the Borrower Representative and the results of the ~~Modeling~~ reviews thereof conducted by the Calculation Agent as reflected in any reports provided by the Calculation Agent, the Calculation Agent shall give ~~prompt~~ written notice (which may be in electronic form) of such discrepancy to ~~the~~ Borrowers or Borrower Representative, and ~~the~~ Administrative Agent, and the Calculation Agent shall reasonably work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the ~~Borrowers~~ Borrowers, or the Borrower Representative, and the Administrative Agent. (iviii) Each of the Borrowers, the Borrower Representative, the Lenders and the ~~Administrative~~ Agent agree that so long as the Calculation Agent complies with the terms of ~~clauses~~ clause (ii~~) and (iii~~) above, the Calculation Agent shall have no liability with respect to any ~~Calculations~~ calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (~~iii~~ii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. The Calculation Agent shall not be responsible for performing or verifying any calculations pursuant to this Agreement to the extent information necessary to verify such calculations is requested from, or is required by the terms of this Agreement to be provided by, and is not provided by, Administrative Agent, Borrower Representative or Borrowers, as applicable. (b) ~~On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c)~~ Any successor Calculation ~~Agent~~ Agentcalculation agent shall be appointed by the ~~Administrative~~ Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the ~~Majority~~ Required Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the ~~Majority~~ Required Lenders consent thereto). The ~~Administrative Agent~~ Required Lenders shall have the right to approve in ~~its~~ their respective sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation ~~Agent~~ Agentcalculation agent and ~~upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”),~~ such approved fee shall constitute the Calculation Agent Fee. (dc) (c) (c) The Borrowers shall jointly and severally indemnify the Calculation Agent ~~and~~ shall be entitled to indemnification, pursuant to Section 2.8(b)(iii), fromand its officers, directors, ~~employees~~ employees, affiliates and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any ~~loss~~and all liabilities, ~~liability~~ obligations, lossesloss, liability, damages, penalties, actions, judgments, suitsfees, costs, expenses or ~~expense~~ disbursements of any kind whatsoeverexpense (including litigation costs and reasonable attorneys’ ~~fees~~fees and expenses) ~~incurred~~ which may at any time (including at any time following the payment of the obligationsincurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including without limitation the ~~costs~~ costs, fees, and expenses of (A) investigating any claim, dispute or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) preparing for, and prosecuting or defending itself against any investigation, legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement~~ Agreement, ; (ii) pursuing enforcement (including the Advances Outstanding) be imposed on, incurred by or asserted against the Calculation Agent in any way relating to or arising out of this Agreement, or any documents contemplated by or referred to herein or the transactions contemplated hereby orwithout limitation by means of any action taken, claim, or omittedsuit brought by the Calculation Agent under or in connection with any of the foregoing; provided, that the Calculation Agent shall not be entitled to the payment of any such liabilities, obligations, losses, damages, penalties, actions, judgments, suitsfor such purpose) of any indemnification or other obligation of the Borrowers (the indemnification afforded under this clause (ii) to include, without limitation, any legal fees, costs, and expenses or disbursements of the Agent resultingincurred by the Calculation Agent in connection therewith) and (iii) the negligence, willful misconduct or bad faith of a Borrower in the performance of its duties hereunder, except in each case to the extent any such loss, liability or expense directly results from ~~the~~ its ownthe gross negligence, or willful misconduct or ~~fraud~~ fraud. The provisions of this Sectionof the Calculation Agent or any CA ~~Party) and~~ Party (~~ii)~~ in each case, as finally determined by a court of competent jurisdiction pursuant or as otherwise agreed to by the ~~gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder~~parties). All such indemnification amounts shall be payable in accordance with Section ~~2.06~~2.8(b)(iii). In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section ~~2.06~~ 2.8(b)(iii) prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. The foregoing indemnification shall survive the payment of the Obligations, the termination or assignment of this Agreement, and anythe termination or resignation or removal of the Calculation Agent. (ed) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, or willful misconduct or fraud on the part of the Calculation Agent, as determined by a court of competent jurisdiction by final and nonappealable judgment or court order, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the ~~Administrative Agent~~ Agent, the Borrower Representative or the Borrowers; provided, however the Calculation Agent shall request from the Borrower Representative any such information which has not been provided to the Calculation Agent, and if not received following such request, the Calculation Agent shall thereafter in its Calculation Agent Deficiency Report identify the nature of such information not provided or, at its election, advise the Administrative Agent and the Paying Agent of any information that the Calculation Agent deems is necessary to perform its duties under this Agreement but which information has not been provided to the Calculation Agent. (fe) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the written direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (gf) The Calculation Agent shall not be charged with or deemed to have knowledge of any Early Amortization Event, Default or Event of Default or any fact or matter for purposes of this Agreement unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or a Responsible Officer of the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the ~~Administrative~~ Agent, as the case may be. (hg) Without limiting the generality of this Section ~~2.19~~2.15, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, ~~Real Estate Taxes, assessment~~ real property taxes or assessments or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the ~~Assets~~Collateral, (iii) to ~~confirm~~ confirm, monitor or verify the contents of any reports or certificates of the Borrowers or the ~~Administrative~~ Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ~~ascertain~~ ascertain, investigate or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (ih) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (ji) The Calculation Agent may rely and shall be protected in acting or refraining from ~~acting~~ acting, in good faith, upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (kj) The Calculation Agent may consult with nationally recognized counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (lk) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the written request, order or direction of the ~~Administrative~~ Agent or any Lender pursuant to the provisions of this Agreement, unless the ~~Administrative~~ Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses (including attorneys’ fees and expenses) and liabilities that may be incurred therein or thereby. (ml) The Calculation Agent shall not be bound to make any investigation intoresponsible for or have any duty to ascertain, review, investigate inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iii) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (iv) the satisfaction of any condition herein, other than to confirm receipt of items expressly required to be delivered to the Calculation Agent or (v) the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by ~~a Lender or~~ the ~~Administrative~~ Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses (including reasonable attorneys’ fees and expenses) or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such ~~examination~~ investigation shall be paid by the ~~Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06~~Borrowers. (nm) The Calculation Agent shall not be responsible for the acts or omissions of the ~~Administrative~~ Agent, the Borrowers, ~~any Lenders~~the Borrower Representative, the Property Manager, the Back-Up Manager, any ~~Counterparty~~ Lender or any other Person. Notwithstanding anything in this Agreement to the contrary, to the fullest extent permitted by law, the Calculation Agent shall not be liable for any special, indirect, consequential or punitive damages (including, without limitation, lost profits) even if advised of the likelihood of such loss or damage and regardless of the form of action. (on) Any Person into which ▇▇▇▇▇▇ or substantially all of the corporate trust business or assets of Calculation Agent may be ~~merged~~ merged, sold, or converted or with which it may be consolidated, or any Person resulting from any merger, sale, conversion or consolidation to which to the Calculation Agent shall be a party, or any Person succeeding to all or substantially all of the corporate trust business or assets of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (po) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (qp) If the Calculation Agent shall at any time receive conflicting instructions from the ~~Administrative~~ Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the ~~Administrative Agent~~Agent without liability. In the absence of ~~fraud~~fraudbad faith, gross negligence or willful misconduct on the part of the Calculation ~~Agent~~Agent as determined by a court of competent jurisdiction by final and nonappealable judgment or court order, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any ~~Monthly~~ monthly Payment Report, certificate of auditors, legal opinion, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shall

Appears in 1 contract

Sources: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)

The Calculation Agent. (a) ~~The Administrative Agent hereby appoints ▇~~Pursuant to the Existing Agreement, W▇▇▇▇ Fargo Bank, N.A. was appointed as ~~Calculation Agent, and authorizes~~ the initial Calculation Agent and is authorized to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each ~~Monthly Payment Report, each~~ Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the LIBOR Rate and SWAP Rate hereunder and any other amounts specified in any Fee Letter, (C) preparing and delivering each Monthly Payment Report as set forth in Section 2.06(b) and (D) maintaining the records set forth in Section ~~2.01(f~~2.01(d). (ii) ~~The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent.~~ The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties in good faith to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect, except to the extent of the Calculation Agent’s fraud, gross negligence or willful misconduct. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section ~~2.06(c)(ii~~2.06(c)(iii). (c) Any successor ~~Calculation Agent~~ calculation agent shall be appointed by the Administrative Agent subject to providing notice thereof to the ~~Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto)~~Lenders. The Administrative Agent ~~shall have the right to approve in its sole discretion (following consultation with~~ and the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) shall mutually agree on the fees ~~(including any adjustments or modifications thereto)~~ required to engage the services of any such successor calculation agent to the extent that such fees exceed those paid to the prior Calculation Agent and upon ~~written notice to the Borrower Representative (a “Calculation Agent Fee Notice”)~~such mutual agreement, such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, ~~liability~~ liability, damages, costs or expense (including reasonable attorneys’ fees; and any fees and expenses incurred by non-routine internal personnel (e.g., default specialists)) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including without limitation the costs and expenses of (A) investigating any claim or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) without duplication of any amount incurred in connection with (A) above, preparing for, and prosecuting or defending itself against any investigation, legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement~~ Agreement; (ii) pursuing enforcement (including without limitation by means of any action, claim, or suit brought by the Calculation Agent for such purpose) of any indemnification or other obligation of the Borrowers (the indemnification afforded under this clause (ii) to include, without limitation, any legal fees, costs and expenses incurred by the Calculation Agent in connection therewith) and (iii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder, except in each case to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA ~~Party) and~~ Party (~~ii)~~ in each case, as determined by a court of competent jurisdiction pursuant or as otherwise agreed to by the ~~gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder~~parties). All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. The foregoing indemnification shall survive the termination of this Agreement. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent, and no permissive right or privilege of the Calculation Agent ~~and, in~~ shall be construed as a duty. In the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on and shall be protected in relying upon the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to ~~confirm~~ confirm, recalculate or verify the ~~contents~~ contents, accuracy or completeness of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, any certificate of a Responsible Officer, any report, any certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may (reasonably, if at the expense of any of the Loan Parties) consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. In connection with any request that the Calculation Agent take any action or refrain from taking any action, in either case not in conformity with and outside the scope of this Agreement, the Calculation Agent shall be entitled to request from the requesting party and to conclusively rely upon, and shall be protected in acting or refraining from acting upon, an officer’s certificate or opinion of counsel delivered by or on behalf of such requesting party; provided, however, that the Calculation Agent shall only be entitled to request an opinion of counsel to the extent the Calculation Agent has made a good faith determination that a material legal issue exists with respect to such requested action or inaction. Any opinion of counsel requested by the Calculation Agent in connection with such a request of Calculation Agent’s action or inaction by any Loan Party shall be an expense of the Borrowers. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent ~~reasonable~~ security or indemnity reasonably satisfactory to the Calculation Agent against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require ~~reasonable~~ indemnity reasonably satisfactory to the Calculation Agent from the Lenders against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Paying Agent (unless the same entity is then acting as Calculation Agent and Paying Agent), the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely upon and shall be protected in acting or refraining from acting based upon any resolution, officer’s certificate, ~~any~~ Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, ~~notice~~ notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shallother

Appears in 1 contract

Sources: Loan Agreement (Starwood Waypoint Homes)

The Calculation Agent. (a) ~~The Administrative Agent hereby appoints~~ ▇▇▇▇▇ Fargo Bank, N.A. is hereby appointed as Calculation ~~Agent,~~ Agent and ~~authorizes the Calculation Agent~~ is authorized to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of ~~the Borrowers~~ Borrower (collectively, the “Calculations”) with respect to each Borrowing Request, each ~~Monthly Borrower Report, each Monthly Payment Report~~Properties Schedule, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by ~~the Borrowers~~Borrower, in each case, as set forth on Schedule VI VIII hereto, (B) determining LIBOR, the ~~LIBOR~~ Federal Funds Effective Rate, the Alternative Rate ~~and SWAP Rate hereunder~~ (in each case, with the confirmation of the Administrative Agent), if applicable and (C) ~~maintaining~~ preparing the ~~records~~ Monthly Payment Report with respect to each Payment Date and delivering such Monthly Payment Report to the Administrative Agent and Borrower for confirmation not less than two (2) Business Days prior to each Payment Date as set forth ~~in Section 2.01(f)~~on Schedule VIII hereto. (ii) ~~The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent.~~ The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from ~~the Borrowers~~ Borrower and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be ~~in electronic form~~via Electronic Transmission) of such discrepancy to ~~the Borrowers~~ Borrower and the Administrative Agent, and the Calculation Agent shall work with such parties in good faith to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be ~~in electronic form~~via Electronic Transmission) by ~~the Borrowers~~ Borrower and the Administrative Agent. (iv) Each of ~~the Borrowers~~Borrower, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect, except to the extent of the Calculation Agent’s gross negligence, bad faith or willful misconduct. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to ~~Borrowers~~ Borrower based on any such erroneous calculations. (b) On each ~~Monthly~~ Payment Date, ~~the Borrowers~~ Borrower shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section ~~2.06(c)(ii~~2.6.3(h). (c) Any successor ~~Calculation Agent~~ calculation agent shall be appointed by the Administrative Agent ~~subject to providing notice thereof to~~ with the ~~Lenders and the absence~~ consent of ~~objection thereto by~~ the Majority Lenders ~~within five (5) Business Days after being notified thereof (or such shorter period in which~~ and, so long as no Event of Default then exists, with the ~~Majority Lenders~~ consent ~~thereto)~~of Borrower. The Administrative Agent and Borrower shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) mutually agree on the fees ~~(including any adjustments or modifications thereto)~~ required to engage the services of any such successor calculation agent to the extent that such fees exceed those paid to the prior Calculation Agent and upon ~~written notice to the Borrower Representative (a “Calculation Agent Fee Notice”)~~such mutual agreement, such approved fee shall constitute the Calculation Agent Fee. (d) ~~The Borrowers~~ Borrower shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, ~~liability~~ liability, damages, costs or expense (~~including reasonable~~ but limited, in the case of attorneys’ ~~fees~~fees and disbursements, to the reasonable and documented fees and disbursements of one external counsel to the CA Parties, taken as a whole) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including without limitation the costs and expenses of (A) investigating any claim or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) preparing for, and prosecuting or defending itself against any investigation, legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement~~ Agreement; (~~except to the extent~~ ii) pursuing enforcement (including without limitation by means of any ~~such loss~~action, ~~liability~~ claim, or ~~expense results from the gross negligence, willful misconduct or fraud of~~ suit brought by the Calculation Agent for such purpose) of any indemnification or ~~any CA Party)~~ other obligation of Borrower and (iiiii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shallbad

Appears in 1 contract

Sources: Loan Agreement (Front Yard Residential Corp)

The Calculation Agent. (a) ~~The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank~~Computershare Trust Company, N.A. is hereby appointed as Calculation ~~Agent,~~ Agent and ~~authorizes the Calculation Agent~~ is authorized to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) ~~determining~~ calculating the ~~LIBOR~~ Term SOFR Rate ~~and SWAP~~ or, following a conversion to the Alternate Rate or the Prime Rate pursuant to Section 2.04, the Alternate Rate or the Prime Rate, hereunder (based upon the information provided by the Administrative Agent) and (C) maintaining the records set forth in Section ~~2.01(f~~2.01(e).. (ii) ~~The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent.~~ The Calculation Agent shall verify the Calculations ~~through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”)~~as set forth herein. ~~The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations.~~ (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the ~~Modeling~~ verification conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the ~~Borrowers~~ Borrowers, the Borrower Representative and the Administrative Agent, and the Calculation Agent shall work with such parties in good faith to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the ~~Borrowers~~ Borrowers, the Borrower Representative and the Administrative Agent.. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect, except to the extent of the Calculation Agent’s bad faith, gross negligence or willful misconduct. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, ~~liability~~ liability, damage or expense of Lenders (including reasonable and documented out-of-pocket attorneys’ fees and expenses) incurred as a result of lending to Borrowers based on any such erroneous calculations.. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section ~~2.06(c)(ii~~2.07(c)(ii).. (c) Any successor ~~Calculation Agent~~ calculation agent shall be appointed by the Administrative Agent (subject to the approval of the Borrower Representative (not to be unreasonably withheld) so long as no Event of Default has occurred and is then continuing) subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent ~~shall have the right to approve in its sole discretion (following consultation with~~ and the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) shall mutually agree on the fees ~~(including any adjustments or modifications thereto)~~ required to engage the services of any such successor calculation agent to the extent that such fees exceed those paid to the prior Calculation Agent and upon ~~written notice to the Borrower Representative (a “Calculation Agent Fee Notice”)~~such mutual agreement, such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall jointly and severally indemnify the Calculation Agent and its officers, directors, ~~employees~~ employees, affiliates and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, ~~liability~~ liability, damages, costs or expense (including reasonable and documented out-of-pocket external attorneys’ ~~fees~~fees and expenses) ~~incurred~~ incurred, expended or advanced in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the reasonable costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) of (A) investigating any claim, dispute or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) without duplication of any amount incurred in connection with (A) above, preparing for, and prosecuting or defending itself against any claim, dispute, investigation, legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement~~ Agreement; (ii) pursuing enforcement (including by means of any action, claim, or suit brought by the Calculation Agent for such purpose) of any indemnification or other obligation of the Borrowers (the indemnification afforded under this clause (ii) to include, without limitation, any reasonable and documented out-of-pocket external legal fees, costs and expenses incurred by the Calculation Agent in connection therewith); and (iii) the gross negligence, willful misconduct or bad faith of any Borrower in the performance of its duties hereunder, except in each case to the extent any such loss, ~~liability~~ liability, damages, costs or expense results from the gross negligence, willful misconduct or ~~fraud~~ bad faith of the Calculation Agent or any CA ~~Party) and~~ Party (~~ii)~~ in each case, as determined by a court of competent jurisdiction pursuant or as otherwise agreed to by the ~~gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder~~parties). All such indemnification amounts shall be payable in accordance with Section ~~2.06~~2.07. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section ~~2.06~~ 2.07 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. The foregoing indemnification shall survive the termination or assignment of this Agreement and the resignation or removal of the Calculation Agent. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent, and no permissive right or privilege of the Calculation Agent ~~and, in~~ shall be construed as a duty or obligation. In the absence of gross negligence, willful misconduct or ~~fraud~~ bad faith on the part of the Calculation Agent, the Calculation Agent may conclusively rely on and shall be protected in relying upon the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers.. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers, employees, agents, affiliates or attorneys; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or ~~rights~~ rights, privileges or powers conferred by this Agreement or at the written direction of ~~a Secured Party~~ the Administrative Agent relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in ~~fraud~~ bad faith or with willful misconduct in ascertaining the pertinent facts.. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be.. (h) Without limiting the generality of this Section ~~2.19~~2.20, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to ~~confirm~~ confirm, recalculate or verify the ~~contents~~ contents, accuracy or completeness of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ (or any other party’s) representations, warranties or covenants under this Agreement or any other Loan Document.. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement.. (j) The Calculation Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, any certificate of a Responsible Officer, any report, any certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. In connection with any request that the Calculation Agent take any action or refrain from taking any action, in either case not in conformity with and outside the scope of this Agreement, the Calculation Agent shall be entitled to request from the requesting party and to conclusively rely upon, and shall be protected in acting or refraining from acting upon, an officer’s certificate or opinion of counsel delivered by or on behalf of such requesting party. Any opinion of counsel requested by the Calculation Agent shall be an expense of the Borrowers. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, ~~powers~~ powers, privileges or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent ~~or any Lender~~ pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, ~~or such Lender~~ shall have offered to the Calculation Agent ~~reasonable~~ security or indemnity reasonably satisfactory to the Calculation Agent against the fees, costs, expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shall

Appears in 1 contract

Sources: Loan Agreement (Bluerock Homes Trust, Inc.)

The Calculation Agent. (a) The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. as Calculation Agent, and authorizes the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the Gross Yield, LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records set forth in Section 2.01(f). (ii) The Administrative Agent, at the Loan Parties’ expense, ~~may~~ shall retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c) Any successor Calculation Agent shall be appointed by the Administrative Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”), such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA ~~Party” and~~ Party”and collectively, the “CA Parties”) for, and hold them harmless against, any loss, liability or expense (including reasonable attorneys’ fees) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any investigation, claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement (except to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA Party) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant ~~hereto and shall~~he

Appears in 1 contract

Sources: Loan Agreement (Invitation Homes Inc.)

The Calculation Agent. (a) The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. as Calculation Agent, and authorizes the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the Gross Yield, LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records set forth in Section 2.01(f). (ii) The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c) Any successor Calculation Agent shall be appointed by the Administrative Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”), such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, ~~liability~~ liability, damages, costs or expense (including reasonable attorneys’ fees) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including without limitation the costs and expenses of (A) investigating any claim or allegation relating to the exercise or performance of any of its powers or duties under this Agreement, and (B) preparing for, and prosecuting or defending itself against any ~~investigation~~legal proceeding, whether pending or threatened, related to any claim or liability in connection with the exercise or performance of any of its powers or duties under this ~~Agreement (~~Agreement, except in each case to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA ~~Party~~Party (in each case, as determined by a court of competent jurisdiction pursuant to a final order or verdict not subject to appeal) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. The foregoing indemnification shall survive the termination of this Agreement. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent, and no permissive right or privilege of the Calculation Agent ~~and, in~~ shall be construed as a duty. In the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on and shall be protected in relying upon the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to ~~confirm~~ confirm, recalculate or verify the contents or accuracy of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. In connection with any request that the Calculation Agent take any action or refrain from taking any action, the Calculation Agent shall be entitled to request and conclusively rely upon, and shall be protected in acting or refraining from acting upon, an officer’s certificate or opinion of counsel of the Administrative Agent. Any opinion of counsel requested by the Calculation Agent shall be an expense of the Borrowers. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the written advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent ~~reasonable~~ security or indemnity reasonably satisfactory to the Calculation Agent against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require ~~reasonable~~ indemnity reasonably satisfactory to the Calculation Agent against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Paying Agent, the Collateral Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant hereto and shallCalcu

Appears in 1 contract

Sources: Loan Agreement (Invitation Homes Inc.)

The Calculation Agent. (a) The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. as Calculation Agent, and authorizes the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the Gross Yield, LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records set forth in Section 2.01(f). (ii) The Administrative Agent, at the Loan Parties’ expense, ~~may~~ shall retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c) Any successor Calculation Agent shall be appointed by the Administrative Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”), such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, liability or expense (including reasonable attorneys’ fees) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any investigation, claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement (except to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA Party) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant ~~hereto and shall~~h

Appears in 1 contract

Sources: Loan Agreement (Invitation Homes Inc.)

The Calculation Agent. (a) The Administrative Agent hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. as Calculation Agent, and authorizes the Calculation Agent to take such actions and to exercise such powers and perform such duties as are expressly delegated to the Calculation Agent by the terms hereof, together with such other powers as are reasonably incidental thereto. (i) The duties of the Calculation Agent hereunder shall be limited to (A) verifying the calculations of the Borrowers (collectively, the “Calculations”) with respect to each Borrowing Request, each Monthly Borrower Report, each Monthly Payment Report, each Reserve Release Request, each Request for Release and each Compliance Certificate based solely on information provided to the Calculation Agent by the Borrowers, in each case, as set forth on Schedule VI hereto, (B) determining the Gross Yield, LIBOR Rate and SWAP Rate hereunder and (C) maintaining the records set forth in Section 2.01(f). (ii) The Administrative Agent, at the Loan Parties’ expense, may retain a nationally recognized accounting firm to conduct an annual audit with respect to the Modeling conducted by the Calculation Agent. The Calculation Agent shall verify the Calculations through the use of a computer modeling program developed by the Calculation Agent (such program, the “Model”, and such process of verification, “Modeling”). The Calculation Agent shall use good faith efforts in developing the Model and in conducting all Modeling with respect to the Calculations. (iii) In the event of a discrepancy between the calculations received by the Calculation Agent from the Borrowers and the results of the Modeling conducted by the Calculation Agent, the Calculation Agent shall give prompt written notice (which may be in electronic form) of such discrepancy to the Borrowers and the Administrative Agent, and the Calculation Agent shall work with such parties to resolve such discrepancy. In each case, the final result agreed to by the parties with respect to such Calculations shall be approved in writing (which may be in electronic form) by the Borrowers and the Administrative Agent. (iv) Each of the Borrowers, the Lenders and the Administrative Agent agree that so long as the Calculation Agent complies with the terms of clauses (ii) and (iii) above, the Calculation Agent shall have no liability with respect to any Calculations that are verified by the Calculation Agent (including pursuant to consultations described in clause (iii) above) that are subsequently determined to be incorrect. For avoidance of doubt, such exculpation from liability shall include, without limitation, any loss, liability or expense of Lenders incurred as a result of lending to Borrowers based on any such erroneous calculations. (b) On each Monthly Payment Date, the Borrowers shall pay to the Calculation Agent any Calculation Agent Fee due to the Calculation Agent pursuant to Section 2.06(c)(ii). (c) Any successor Calculation Agent shall be appointed by the Administrative Agent subject to providing notice thereof to the Lenders and the absence of objection thereto by the Majority Lenders within five (5) Business Days after being notified thereof (or such shorter period in which the Majority Lenders consent thereto). The Administrative Agent shall have the right to approve in its sole discretion (following consultation with the Borrower Representative and, subject to the approval of the Borrower Representative (in each case, not to be unreasonably withheld, delayed or conditioned) in the case of any amount in excess of the Calculation Agent Fee in effect as of the date hereof) the fees (including any adjustments or modifications thereto) required to engage the services of any such successor Calculation Agent and upon written notice to the Borrower Representative (a “Calculation Agent Fee Notice”), such approved fee shall constitute the Calculation Agent Fee. (d) The Borrowers shall indemnify the Calculation Agent and its officers, directors, employees and agents (each, a “CA Party” and collectively, the “CA Parties”) for, and hold them harmless against, any loss, liability or expense (including reasonable attorneys’ fees) incurred in connection with or arising out of (i) the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any investigation, claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement (except to the extent any such loss, liability or expense results from the gross negligence, willful misconduct or fraud of the Calculation Agent or any CA Party) and (ii) the gross negligence, willful misconduct or fraud of any Borrower in the performance of its duties hereunder. All such indemnification amounts shall be payable in accordance with Section 2.06. In the event any such indemnity amounts are distributed to the Calculation Agent from the Collection Account pursuant to Section 2.06 prior to deposit by the Borrowers of such indemnity amounts therein, the obligation of reimbursement by the Borrowers with respect to such indemnity amounts will instead be payable to the Collection Account. (e) The Calculation Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Calculation Agent in such capacity herein. No implied covenants or obligations shall be read into this Agreement against the Calculation Agent and, in the absence of gross negligence, willful misconduct or fraud on the part of the Calculation Agent, the Calculation Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Calculation Agent pursuant to and conforming to the requirements of this Agreement. The Calculation Agent shall not be responsible for verifying any calculations pursuant to this Agreement to the extent information necessary to make such verifications is not provided to it by the Administrative Agent or the Borrowers. (f) The Calculation Agent shall not be liable for (i) an error of judgment made in good faith by one of its officers; or (ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Calculation Agent under this Agreement, in each case, unless it shall be proved that the Calculation Agent shall have been grossly negligent or acted in fraud or with willful misconduct in ascertaining the pertinent facts. (g) The Calculation Agent shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Calculation Agent obtains actual knowledge of such event or the Calculation Agent receives written notice of such event from the Borrowers, any Secured Party or the Administrative Agent, as the case may be. (h) Without limiting the generality of this Section 2.19, the Calculation Agent shall have no duty (i) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or maintain any such recording, filing or depositing or to subsequently record, refile or redeposit any of the same, (ii) to pay or discharge any Taxes, Real Estate Taxes, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Assets, (iii) to confirm or verify the contents of any reports or certificates of the Borrowers or the Administrative Agent delivered to the Calculation Agent pursuant to this Agreement believed by the Calculation Agent to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrowers’ representations, warranties or covenants under this Agreement or any other Loan Document. (i) The Calculation Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Calculation Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Borrowers under this Agreement. (j) The Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of a Responsible Officer, any report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (k) The Calculation Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Calculation Agent in good faith and in accordance therewith. (l) The Calculation Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Loan Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Lender pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Lender shall have offered to the Calculation Agent reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (m) The Calculation Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Calculation Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Calculation Agent, not reasonably assured by the Borrowers, the Calculation Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrowers or, if paid by the Calculation Agent, shall be reimbursed by the Borrowers to the extent of funds available therefor pursuant to Section 2.06. (n) The Calculation Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Borrowers, any Lenders, any Counterparty or any other Person. (o) Any Person into which the Calculation Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Calculation Agent shall be a party, or any Person succeeding to the business of the Calculation Agent, shall be the successor of the Calculation Agent under this Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (p) The Calculation Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Properties or the Collateral. (q) If the Calculation Agent shall at any time receive conflicting instructions from the Administrative Agent and the Borrowers or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Calculation Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of fraud, gross negligence or willful misconduct on the part of the Calculation Agent, the Calculation Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, any Monthly Payment Report, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Calculation Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Calculation Agent harmless from any claims that may arise or be asserted against the Calculation Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. (r) The Calculation Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Calculation Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (s) The Calculation Agent may delegate or perform any of its duties under this Agreement by or through sub-agents, service providers or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Calculation Agent shall not be responsible for the negligence or misconduct of any sub-agents, service providers or attorneys-in-fact selected by it with reasonable care in the absence of gross negligence, fraud or willful misconduct. The Borrowers will reimburse the Calculation Agent for any fees, costs or expenses incurred by the Calculation Agent with respect to any agents, service providers or attorneys-in-fact appointed by the Calculation Agent pursuant to this Section 2.19 and such agents, service providers and attorneys-in-fact shall be entitled to all the same indemnification rights and exculpation by the Loan Parties as may apply to the Calculation Agent. (t) The Calculation Agent may: (i) terminate its obligations as Calculation Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Borrowers, the Lenders and the Administrative Agent (together with a copy of such notice posted to a Data Site); provided, however, that, without the consent of the Administrative Agent and the Majority Lenders, such resignation shall not be effective until a successor Calculation Agent acceptable to the Administrative Agent, and to whose appointment the Majority Lenders do not object within five (5) Business Days after the Lenders are notified thereof (or such shorter period in which the Majority Lenders consent thereto), shall have accepted appointment as Calculation Agent, pursuant ~~hereto and shall~~her

Appears in 1 contract

Sources: Loan Agreement (Invitation Homes Inc.)

Common use of The Calculation Agent Clause in Contracts