The Paying Agent. (a) The Borrower hereby appoints [***] as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08. (b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any fee, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY. (c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement. (d) The Paying Agent shall not be liable for: (i) an error of judgment made in good faith by one of its Responsible 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 Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts. (e) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred. (f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement. (g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement. (h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. (i) The Paying 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 Paying Agent in good faith in accordance therewith. (j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or any other party hereto shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby. (k) The Paying 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 Secured Party; provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08. (l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder. (m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction received. (n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables and other Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY. (o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary. (p) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated. (q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or notice. (r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. (s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law. (t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty. (u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower). (v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control. (w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it is a party.
Appears in 3 contracts
Sources: Warehouse Agreement (Vroom, Inc.), Warehouse Agreement (Vroom, Inc.), Warehouse Agreement (Vroom, Inc.)
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationAdministrative Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Compliance Certificate, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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. The Paying Agent shall not be charged with knowledge of any Unmatured Event of Default or Event of Default unless an Authorized Officer of the Paying Agent receives written notice specifying that an Unmatured Event of Default or Event of Default has occurred from the Borrower, unless requested in writing so to do by a the Collateral Manager, any Agent or any other Secured Party; provided. The receipt and/or delivery of reports and other information (including, that if without limitation, any Compliance Certificate) under this Agreement by the payment within a reasonable time Paying Agent containing information relating to events or circumstances which may constitute an Unmatured Event of Default or Event of Default shall not constitute notice or actual or constructive knowledge of an Unmatured Event of Default or Event of Default.
(e) The Borrower agrees to pay to the Paying Agent of from time to time such compensation as agreed in writing between the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of Borrower and the Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lf) The Paying Agent may execute 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, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(g) The Paying 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, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, unless it shall have received security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the trusts or powers hereunder or perform any duties obligations of the Borrower under this Agreement either directly or by or through agents or attorneys or a custodian. Agreement.
(h) The Paying Agent shall not be responsible for any misconduct the acts or negligence omissions of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer Collateral Manager, any Agent, any Lender or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this AgreementPerson. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Collateral.
(i) Any Person into which the Receivables and other Collateral. The Paying 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 Paying Agent shall not be liable for a party, or any action Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, without the execution or omission filing of any paper or any further act on the part of any of the parties hereto, anything herein to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYthe contrary notwithstanding.
(oj) If the Paying Agent shall at any time (i) be uncertain as to its duties or rights hereunder, (ii) receive instructions from any of the parties authorized to give instructions which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, or (iii) receive conflicting instructions from the Administrative Agent and the Servicer or any other party authorized to this Agreement give instructions and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, then in each such case, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected incur no liability for acting in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contraryaccordance therewith.
(pk) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(ql) The Paying Agent shall incur no liability nor be responsible to the Borrower or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be imputed with any knowledge oflimited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or information possessed the unavailability of the Federal Reserve Bank wire or obtained by telex or other wire or communication facility.
(m) In no event shall the Paying Agent be liable for any special, indirect, punitive, incidental or consequential loss or damage of any nature whatsoever arising from any act or omission of the Paying Agent, whether or not the possibility of such damage was disclosed to, or could have been reasonably foreseen by, the Paying Agent and regardless of the form of action.
(n) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer, any Compliance Certificate, certificate of auditors or any other Personcertificate, or any affiliatestatement, line of businessinstrument, opinion, report, notice, request, consent, order, appraisal, bond or other division paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(o) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of [***] (terrorist activities and vice versa)money laundering, the Paying Agent is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Paying Agent. Information contained in any reports (including Monthly Reports) delivered Accordingly, each of the parties agrees to provide to the Paying Agent upon its request from time to time such identifying information and any other publicly documentation as may be available information shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the to such party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits in order to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of enable the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a dutycomply with applicable law.
(up) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In have no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from obligation to determine whether any Force Majeure Event conditions precedent to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections making any Advance have been satisfied and indemnities afforded to the Paying Agent hereunder shall apply equally to incur no liability for distributing funds received into the Paying Agent under any other Basic Document to which it is a partyFunding Account in accordance with an Advance Notice received by it.
Appears in 3 contracts
Sources: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
The Paying Agent. (a) The Borrower Lenders hereby appoints [***] appoint Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 2.12 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08based on the Monthly Servicing Report (upon which the Paying Agent shall be entitled to conclusively rely).
(b) The Paying Agent ▇▇▇▇▇▇ agrees that, subject to the provisions of this Section, it shall hold any sums held by it for the payment of amounts due with respect to the Obligations in trust for the benefit of the Persons entitled thereto until such sums shall be compensated for its activities hereunder paid to such Persons or otherwise disposed of as herein provided and the Account Control Agreement by receiving the pay such sums to such Persons as herein provided.
(c) Each Paying Agent Fee. The (other than the initial Paying Agent Fee Agent) shall be payable appointed by the Lenders with the prior written consent of the Company (if required), in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly to the Paying Agent by the Servicer. 2.20(r).
(d) The Borrower Company shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any fee, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower)incurred, other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent in the performance of the Paying Agent’s obligations hereunder, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunderAgreement. All such amounts shall be payable in accordance with Section 2.08. The provisions 2.12 and such indemnity shall survive the termination of this Section shall survive Agreement and the resignation or removal of any party and the termination or assignment of this Agreement. Anything in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYAgent.
(ce) The Paying Agent shall be liable undertakes to perform such duties, and only such duties, as are expressly set forth in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control this Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the . The Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(df) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of Requisite Lenders or the Administrative Agent or other relevant instructing party expressly permitted hereunder, or (ii) in the absence of its own, gross negligence, bad faith or willful misconduct as determined by a Secured Party relating court of competent jurisdiction, no longer subject to the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent factsappeal or review.
(eg) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Default or Event or Unmatured Termination Event of Default unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the BorrowerCompany, the Servicer, Servicer or any Secured Partythe Administrative Agent, as the case may be. The receipt and/or delivery of reports and other information under this Agreement by the Paying Agent, and any publicly-available information, shall have no duty to take any action to determine whether not constitute notice or actual or constructive knowledge of any such event has occurredor information, including any Default or Event of Default contained therein.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(gh) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person Company under this Agreement.
(hi) The Paying Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer’s Certificate, any Monthly Servicing 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(ij) The Paying 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 Paying Agent in good faith and in accordance therewith.
(jk) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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, any Lender or any Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, such Lender or any other party hereto such Agent shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(kl) The Paying 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 Secured Partythe Administrative Agent (at the direction of the Requisite Lenders); provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the BorrowerCompany, the Paying Agent may require reasonable indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower Company or, if paid by the Paying Agent, shall be reimbursed by the Borrower Company to the extent of funds available therefor pursuant to Section 2.08.
(l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder2.12.
(m) The Paying Agent shall have no duties not be responsible for the acts or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from omissions of the Administrative Agent, the Borrower Company, the Servicer, any Agent, any Lender or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreementother Person, and the Paying Agent shall be entitled to refrain from taking may assume compliance by such action and continue to refrain from acting parties with their obligations, unless and until a Responsible Officer of the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor notice to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction receivedcontrary.
(n) Any Person into which the Paying 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 Paying Agent shall be a party, or any Person succeeding to the business of the Paying Agent, shall be the successor of the Paying 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.
(o) The Paying Agent may act shall not be liable for ensuring that the Secured Parties’ interest in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent is valid or enforceable, and does not assume and shall have no responsibility for, and makes no representation as to, monitoring the status of any lien or performance or value of the Receivables and other any Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(op) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Company or the Servicer 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 Paying Agent shall be entitled to rely on follow the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party parties to this Agreement in respect of will hold the Paying Agent harmless from any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(pq) The Paying 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 other than any person, firm or corporation, except only such notices or instructions as are expressly herein provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(qr) The Paying Agent may: (i) terminate its obligations as Paying Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Company, the Servicer and the Administrative Agent; provided, however, that, without the consent of the Administrative Agent, such resignation shall not be effective until a successor Paying Agent reasonably acceptable to the Administrative Agent and, so long as no Event of Default is then existing, the Company (such consent not to be unreasonably withheld or delayed) shall have accepted appointment by the Lenders as Paying Agent, pursuant hereto and shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time upon thirty (30) days’ written notice by the Administrative Agent (acting at the direction of the Requisite Lenders), delivered to the Paying Agent, the Company and the Servicer. In the event of such termination or removal, the Lenders with, so long as no Event of Default is then existing, the consent of the Company (such consent not to be unreasonably withheld or delayed) shall appoint a successor paying agent. If, however, a successor paying agent is not appointed by the Lenders within sixty (60) days after the giving of notice of resignation or removal, the Paying Agent may petition a court of competent jurisdiction for the appointment of a successor Paying Agent.
(s) Any successor Paying Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Company, the Servicer, the Administrative Agent, and to the predecessor Paying Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Paying Agent shall become effective and such successor Paying Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Paying Agent under this Agreement, with like effect as if originally named as Paying Agent. The predecessor Paying Agent shall upon payment of its fees and expenses deliver to the successor Paying Agent all documents and statements and monies held by it under this Agreement; and the Company and the predecessor Paying Agent shall execute and deliver such instruments and do such other things as may reasonably be requested for fully and certainly vesting and confirming in the successor Paying Agent all such rights, powers, duties, and obligations.
(t) The Company shall reimburse the Paying Agent for the reasonable out-of-pocket expenses of the Paying Agent actually incurred in connection with the succession of any successor Paying Agent including in transferring any funds in its possession to the successor Paying Agent.
(u) The Paying Agent shall not be imputed with have no obligation to invest and reinvest any knowledge of, cash held in the Collection Account or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to moneys held by the Paying Agent pursuant to this Agreement in the absence of timely and any other publicly available information specific written investment direction from Company. In no event shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts be liable for the selection of investments or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting)for investment losses incurred thereon. The Paying Agent shall not be liable for have no liability in respect of losses incurred as a result of the liquidation of any action it takes, suffers investment prior to its stated maturity or omits the failure of the Company to take in good faith in reliance on such Officer’s Certificate or Opinion of Counselprovide timely written investment direction.
(sv) Notwithstanding anything If the Paying Agent shall be uncertain as to its duties or rights hereunder or under any other Credit Documents or shall receive instructions from any of the parties hereto pursuant to this Agreement which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement or another Credit Document to which it is a party, the Paying Agent shall be entitled (without incurring any liability therefor to the contrary Company or any other Person) to (i) consult with counsel of its choosing and act or refrain from acting based on the advice of such counsel and (ii) refrain from taking any action until it shall be directed otherwise in writing by all of the parties hereto or by final order of a court of competent jurisdiction.
(w) The Paying Agent shall incur no liability nor be responsible to Company or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be limited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(x) The Paying Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, provided that the Paying Agent shall remain obligated and liable for the administration of its duties hereunder, to the same extent and under the same terms and conditions as if it alone were acting as Paying Agent.
(y) The Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) applicable law. The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(uz) Knowledge of the Paying Agent shall not be attributed or imputed to Deutsche Bank Trust Company Americas’ other roles in the transaction and knowledge of the Custodian or Controlled Account Bank shall not be attributed or imputed to the Paying Agent (other than those where the roles are performed by the same group or division within Deutsche Bank Trust Company Americas or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Deutsche Bank Trust Company Americas (and vice versa).
(aa) The Paying Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting any security interest in the recitals Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Paying Agent shall have no responsibility for (A) monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in this Agreement or related to the Collateral, (which are the statements B) taking any necessary steps to preserve rights against any Person with respect to any Collateral, or (C) taking any action to protect against any diminution in value of the Borrower)Collateral.
(vbb) In no event shall The Lenders hereby authorize and direct the Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to execute and deliver the extent beyond Paying Agent’s reasonable controlUndertakings Agreement.
(wcc) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally have no (i) responsibility or liability for determining or verifying the Base Rate or Benchmark and shall be entitled to rely upon any designation of such a rate (and any modifier) by the Paying Administrative Agent under and (ii) liability for any other Basic Document to which it is a party.failure or de
Appears in 2 contracts
Sources: Credit Agreement (Enova International, Inc.), Credit Agreement (Enova International, Inc.)
The Paying Agent. (a) The Borrower hereby appoints [***] Computershare as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations Aggregate Unpaids that are to be made from amounts withdrawn from the Collection Account or the Reserve Account shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent/Collateral Agent Fee. The Paying Agent/Collateral Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly to the Paying Agent by the Servicer. The Borrower and the Servicer shall indemnify the Paying Agent and its officers, directors, employees and agents for, pursuant to Section 11.01 and hold them harmless against any fee, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY11.02.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(d) The Paying Agent shall not be liable for:
(i) an error of judgment made in good faith by one of its Responsible Officersofficers; 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 Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been grossly negligent in ascertaining the pertinent facts.
(ed) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Unmatured Event of Default, Event of Default or Facility Amortization Event, Servicer Termination or be required to act (including the sending of any notice) upon any such event or information, including any Unmatured Event of Default, Event of Default or Facility Amortization Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains has actual knowledge of such event or receives written notice of such event or information from the Borrower, the Borrower Loan Trustee, the Servicer, the Administrative Agent or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has event, default or Event of Default shall have occurred.
(fe) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge Tax or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iviii) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer (other than in its capacity as Backup Servicer in accordance with its express duties as such undertaken herein) or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (viv) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian custodian of books, Recordsrecords, files and computer records relating to the Contracts under this Agreement.
(gf) The Paying 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 ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability shall not be reasonably assured to it, and none . None of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for or have any duty to supervise or monitor, the manner of performance of, any of the obligations or the acts or omissions of the ServicerBorrower, the Borrower Servicer or any other Person party under this Agreement, and the Paying Agent may assume performance of such parties absent written notice or actual knowledge of a Responsible Officer of the Paying Agent to the contrary.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(ig) The Paying 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 Paying Agent in good faith in accordance therewith.
(jh) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 Collateral Agent or the Administrative Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or any other party hereto shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby. The Paying Agent shall have no liability for any action or inaction taken at the direction of the Borrower, the Servicer, the Administrative Agent, the Required Lenders or the Collateral Agent in accordance with this Agreement.
(ki) The Paying Agent shall not be bound to make any investigation into the facts of or 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 Secured Party; provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lj) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through Affiliates, agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent Affiliate, agent, attorney or custodian appointed with due care by it hereunder.
(mk) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied duties (including fiduciary duties), covenants or obligations shall be read into this Agreement against the Paying Agent. The If the Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower Agent or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Collateral Agent, the Borrower Administrative Agent or the Servicer, as applicable, without incurring any liability therefor to the Collateral Agent, the Administrative Agent, the Borrower, the Borrower Loan Trustee, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction receivedPerson.
(nl) The Paying Agent may act in reliance upon any written communication of the Collateral Agent or the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables Contracts and other Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY THE PAYING AGENT.
(o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(p) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it is a party.
Appears in 1 contract
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationFacility Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Compliance Certificate, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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. The Paying Agent shall not be charged with knowledge of any Unmatured Event of Default or Event of Default unless an Authorized Officer of the Paying Agent receives written notice specifying that an Unmatured Event of Default or Event of Default has occurred from the Borrower, unless requested in writing so to do by a the Collateral Manager, any Agent or any other Secured Party; provided. The receipt and/or delivery of reports and other information (including, that if without limitation, any Compliance Certificate) under this Agreement by the payment within a reasonable time Paying Agent containing information relating to events or circumstances which may constitute an Unmatured Event of Default or Event of Default shall not constitute notice or actual or constructive knowledge of an Unmatured Event of Default or Event of Default.
(e) The Borrower agrees to pay to the Paying Agent of from time to time such compensation as agreed in writing between the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of Borrower and the Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lf) The Paying Agent may execute 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, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(g) The Paying 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, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, unless it shall have received security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the trusts or powers hereunder or perform any duties obligations of the Borrower under this Agreement either directly or by or through agents or attorneys or a custodian. Agreement.
(h) The Paying Agent shall not be responsible for any misconduct the acts or negligence omissions of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Facility Agent, the Borrower, the Servicer Collateral Manager, any Agent, any Lender or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this AgreementPerson. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Borrower Collateral.
(i) Any Person into which the Receivables and other Collateral. The Paying 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 Paying Agent shall not be liable for a party, or any action Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, without the execution or omission filing of any paper or any further act on the part of any of the parties hereto, anything herein to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYthe contrary notwithstanding.
(oj) If the Paying Agent shall at any time (i) be uncertain as to its duties or rights hereunder, (ii) receive instructions from any of the parties authorized to give instructions which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, or (iii) receive conflicting instructions from the Administrative Facility Agent and the Servicer or any other party authorized to this Agreement give instructions and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, then in each such case, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Facility Agent may rely and shall be protected incur no liability for acting in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contraryaccordance therewith.
(pk) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(ql) The Paying Agent shall incur no liability nor be responsible to the Borrower or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be imputed with any knowledge oflimited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or information possessed the unavailability of the Federal Reserve Bank wire or obtained by any other Person, or any affiliate, line of business, telex or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual wire or constructive knowledge or noticecommunication facility.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(vm) In no event shall the Paying Agent be liable either directly for any special, indirect, punitive, incidental or indirectly for losses consequential loss or delays resulting damage of any nature whatsoever arising from any Force Majeure Event to act or omission of the extent beyond Paying Agent’s reasonable control, whether or not the possibility of such damage was disclosed to, or could have been reasonably foreseen by, the Paying Agent and regardless of the form of action.
(wn) The rightsPaying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, benefitscertificate of an Authorized Officer, protections any Compliance Certificate, 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 indemnities afforded to have been signed or presented by the proper party or parties.
(o) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Paying Agent is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Paying Agent. Accordingly, each of the parties agrees to provide to the Paying Agent hereunder shall apply equally upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Paying Agent under any other Basic Document to which it is a partycomply with applicable law.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
The Paying Agent. (a) The Borrower Lenders hereby appoints [***] appoint Computershare Trust Company, National Association as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08based on the Monthly Servicing Report.
(b) The Paying Agent Company shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly pay to the Paying Agent the applicable fees payable to it in accordance with schedule of fees as separately agreed to in writing between the Company and the Paying Agent.
(c) The Paying Agent ▇▇▇▇▇▇ agrees that, subject to the provisions of this Section, it shall:
(i) hold any sums held by it for the payment of amounts due with respect to the Obligations in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii) [Intentionally Omitted];
(iii) comply with all requirements of the Internal Revenue Code and any applicable State law with respect to the withholding from any payments made by it in respect of any Obligations of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith; and
(iv) provide to the Lenders such information as is required to be delivered under the Internal Revenue Code or any State law applicable to the particular Paying Agent, relating to payments made by the Servicer. Paying Agent under this Agreement.
(d) Each Paying Agent (other than the initial Paying Agent) shall be appointed by the Lenders with the prior written consent of the Company.
(e) The Borrower Company shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any fee, damageclaim, loss, liability action, suit, damage, fee, cost or expense incurred (including the reasonable attorneys’ fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit broughtexpenses) by the Paying Agent of any indemnification or other obligation of Borrower)incurred, other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying AgentAgent (as determined by a court of competent jurisdiction or as otherwise agreed to by the parties), arising out of or in connection with (i) investigating, preparing for, defending itself or themselves against, or prosecuting for itself any dispute or legal proceeding, whether pending or threatened, that is related directly or indirectly in any way to this Agreement, (ii) pursuing enforcement (including without limitation by means of any action, claim, or suit brought by the Paying Agent for such purpose) of any indemnification or other obligation of the Company (the indemnification afforded under this clause (ii) to include, without limitation, any legal fees, costs and expenses incurred by the Paying Agent in connection therewith), (iii) the acceptance or administration of the Loans, the acts or omissions of any other Person or third party in connection with the Loans, the Company or the Company’s assets, or (iv) the performance of any or all of its duties or responsibilities (including, without limitation, the execution and filing of any federal or state tax returns and information returns, as applicable) or the exercise or lack of exercise of any or all of its or their powers, rights or privileges hereunder or under any other Credit Document, including without limitation (A) complying with any new or updated laws or regulations directly related to the performance by it of its obligations under and in accordance with this Agreement or any Credit Document and the Account Control (B) addressing any bankruptcy claim in any way related to or affecting this Agreement, including the any Credit Document or any party to such agreements, including, as applicable, all costs and expenses of defending itself against any claim or liability incurred in connection with the exercise use of default specialists within or performance outside of any the Paying Agent (in the case of its powers or duties under personnel of the Paying Agent such costs to be calculated using standard market rates). Such indemnity shall survive the termination of this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYAgent.
(cf) The Paying Agent shall be liable undertakes to perform such duties, and only such duties, as are expressly set forth in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control this Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the . The Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(d) The Paying Agent shall not be liable for:
(i) an error of judgment made in good faith by one of its Responsible 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 Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or any other party hereto shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(k) The Paying 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 Secured Party; provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables and other Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Company or the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party parties to this Agreement in respect of will hold the Paying Agent harmless from any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose.
(h) The Paying Agent may: (i) terminate its obligations as Paying Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Company, the Servicer and the Administrative Agent; provided, however, that, without the consent of the Administrative Agent, such resignation shall not be effective until a successor Paying Agent reasonably acceptable to the Administrative Agent and Company shall have accepted appointment by the Lenders as Paying Agent, pursuant hereto and shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time by written demand, of the Requisite Lenders, delivered to the Paying Agent, the Company and the Servicer. In the event of such termination or removal, the Lenders with the consent of the Company shall appoint a successor paying. If, however, a successor paying agent is not appointed by the Lenders within ninety (90) days after the giving of notice of resignation, the Paying Agent may petition a court of competent jurisdiction for the appointment of a successor Paying Agent and the costs of the Paying Agent (including reasonable attorneys’ fees and expenses) in connection with such petition shall be borne by the Company.
(i) Any successor Paying Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Company, the Servicer, the Administrative Agent, and to the predecessor Paying Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Paying Agent shall become effective and such successor Paying Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Paying Agent under this Agreement, with like effect as if originally named as Paying Agent. The predecessor Paying Agent shall upon payment of its fees and expenses deliver to the successor Paying Agent all documents and statements and monies held by it under this Agreement; and the Company and the predecessor Paying Agent shall execute and deliver such instruments and do such other things as may reasonably be requested for fully and certainly vesting and confirming in the successor Paying Agent all such rights, powers, duties, and obligations.
(j) The Company shall reimburse the Paying Agent for the reasonable out-of-pocket expenses of the Paying Agent incurred in connection with the succession of any successor Paying Agent including in transferring any funds in its possession to the successor Paying Agent.
(k) Computershare Trust Company, N.A. will perform its duties as Paying Agent hereunder through its Computershare Corporate Trust division (including, as applicable, any agents or Affiliates utilized thereby).
(l) The Paying Agent shall not be required to take notice or be deemed to have notice or knowledge of (a) any failure by the Company to comply with its obligations hereunder or in the Credit Documents or (b) any Default or Event of Default, unless a responsible officer of the Paying Agent obtains actual knowledge of such Default or Event of Default or shall have received written notice thereof and such notice references the Company generally, this Agreement. In the absence of such actual knowledge or written notice, or the Paying Agent may conclusively assume that there is no Default or Event of Default.
(m) Other than with respect to any information that the Paying Agent has an express duty hereunder to review, the Paying Agent shall not be deemed to have knowledge of any fact or matter for the purposes of this Agreement unless a responsible officer of the Paying Agent (i) has actual knowledge thereof or (ii) receives written notice with respect thereto
(n) Knowledge or information acquired by (i) Computershare Trust Company, N.A. in its capacity as Paying Agent hereunder shall not be imputed to Computershare Trust Company, N.A. in any of its other capacities hereunder or under any other Credit Document and vice versa, and (ii) any Affiliate of Computershare Trust Company, N.A shall not be imputed to Computershare Trust Company, N.A. in any of its capacities hereunder or under any other Credit Document and vice versa.
(o) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, affiliates or attorneys.
(p) Any Person into which the Paying Agent may be merged or converted or with which it may be consolidated, or sold or transferred to, or any Person resulting from any merger, conversion or consolidation, sale or transfer to which the Paying Agent shall be a party, or any Person succeeding to the all or substantially all of the corporate trust business of the Paying Agent, shall be the successor of the Paying Agent hereunder, 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.
(q) The Paying Agent, in the absence of bad faith on its part, may conclusively rely, as to the truth of the statements and the correctness of the statements and opinions expressed therein, upon certificates, reports, documents, issuer requests or other instruments or opinions furnished to such party and on their face conforming to the requirements of this Agreement, and it shall not be responsible for the accuracy or content of any such statements or opinions; however, it shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Agreement. The Paying Agent shall not be bound liable for any action it takes or omits to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(p) The Paying Agent is authorized, take in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other Person other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with good faith which it is advised believes to be authorized or within the discretion or rights or powers conferred upon it 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 by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or noticethis Agreement.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officerofficer’s Certificate certificate or an Opinion opinion of Counselcounsel, as applicable (which shall not be at the expense of the party requesting the Paying Agent act or refrain from acting)Agent. The Paying Agent shall not be liable for any action it takes, suffers takes or omits to take in good faith in reliance on an officer’s certificate or opinion of counsel. Any person requesting the Paying Agent to act or refrain from acting shall be responsible for all fees and expenses incurred in connection with such Officer’s Certificate or Opinion of Counselrequest.
(s) Notwithstanding anything to the contrary in No provision of this Agreement, Agreement shall require the Paying Agent to expend, advance or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall not be required have reasonable grounds to take any action believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not in accordance with Applicable Lawreasonably assured to it.
(t) The right Paying Agent shall not be personally liable for (i) the acts or omissions of any other party hereto or (ii) any losses due to forces beyond the reasonable control of the Paying Agent to perform any permissive Agent, including, without limitation, strikes, work stoppages, acts of war or discretionary act enumerated in this Agreement terrorism, insurrection, revolution, nuclear or any related document shall not be construed as a duty.natural catastrophes or acts of God and interruptions, pandemics, epidemics, loss or malfunctions of utilities, communications or computer (software and hardware) services
(u) The Paying Agent shall not be responsible for the recitals in have any duty (A) to record, file or deposit this Agreement or the Security Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or to rerecord, refile or redeposit the same, (which are B) to procure or maintain any insurance, (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any funds in any account established hereunder or (D) to confirm or verify the statements contents of any reports or certificates of any party hereto delivered to the Borrower)Paying Agent pursuant to this Agreement.
(v) In no event shall The Paying Agent shall not be liable either directly or indirectly for losses or delays resulting from under any Force Majeure Event obligation to take any action in the extent beyond Paying Agent’s reasonable controlperformance of its respective duties hereunder that would be in violation of applicable law.
(w) The rights, benefits, protections and indemnities afforded Paying Agent shall not be responsible for or makes any representation as to the Paying Agent hereunder validity or adequacy of any of the Credit Documents or the Loans; no such party shall apply equally to be accountable for the Paying Agent under Company’s use of the proceeds from the Loans, and no such party shall be responsible for any other Basic Document to which it is a partystatement of the Company in this Agreement or in any document issued in connection with the entry into the Loans.
Appears in 1 contract
Sources: Credit Agreement (FlexShopper, Inc.)
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationFacility Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Compliance Certificate, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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. The Paying Agent shall not be charged with knowledge of any Unmatured Event of Default or Event of Default unless an Authorized Officer of the Paying Agent receives written notice specifying that an Unmatured Event of Default or Event of Default has occurred from the Borrower, unless requested in writing so to do by a the Collateral Manager, any Agent or any other Secured Party; provided. The receipt and/or delivery of reports and other information (including, that if without limitation, any Compliance Certificate) under this Agreement by the payment within a reasonable time Paying Agent containing information relating to events or circumstances which may constitute an Unmatured Event of Default or Event of Default shall not constitute notice or actual or constructive knowledge of an Unmatured Event of Default or Event of Default.
(e) The Borrower agrees to pay to the Paying Agent of from time to time such compensation as agreed in writing between the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of Borrower and the Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lf) The Paying Agent may execute 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, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith. 133
(g) The Paying 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, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, unless it shall have received security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the trusts or powers hereunder or perform any duties obligations of the Borrower under this Agreement either directly or by or through agents or attorneys or a custodian. Agreement.
(h) The Paying Agent shall not be responsible for any misconduct the acts or negligence omissions of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Facility Agent, the Borrower, the Servicer Collateral Manager, any Agent, any Lender or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this AgreementPerson. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Borrower Collateral.
(i) Any Person into which the Receivables and other Collateral. The Paying 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 Paying Agent shall not be liable for a party, or any action Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, without the execution or omission filing of any paper or any further act on the part of any of the parties hereto, anything herein to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYthe contrary notwithstanding.
(oj) If the Paying Agent shall at any time (i) be uncertain as to its duties or rights hereunder, (ii) receive instructions from any of the parties authorized to give instructions which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, or (iii) receive conflicting instructions from the Administrative Facility Agent and the Servicer or any other party authorized to this Agreement give instructions and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, then in each such case, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Facility Agent may rely and shall be protected incur no liability for acting in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contraryaccordance therewith.
(pk) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(l) The Paying Agent shall incur no liability nor be responsible to the Borrower or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be limited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. 134
(m) In no event shall the Paying Agent be liable for any special, indirect, punitive, incidental or consequential loss or damage of any nature whatsoever arising from any act or omission of the Paying Agent, whether or not the possibility of such damage was disclosed to, or could have been reasonably foreseen by, the Paying Agent and regardless of the form of action.
(n) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer, any Compliance Certificate, 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.
(o) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Paying Agent is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Paying Agent. Accordingly, each of the parties agrees to provide to the Paying Agent upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Paying Agent to comply with applicable law.
(p) The Paying Agent shall have no obligation to determine whether any conditions precedent to making any Advance have been satisfied and the Paying Agent shall incur no liability for distributing funds received into the Funding Account in accordance with an Advance Notice received by it.
(q) The Paying Agent shall not be imputed with under any knowledge obligation (i) to monitor, determine or verify the unavailability or cessation of LIBOR or the LIBOR Rate, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, or information possessed or obtained by any other Personreplacement for the LIBOR Rate, or (ii) to select, determine or designate any affiliate, line of businessreplacement rate, or other division of [***] (and vice versa). Information contained in whether any reports (including Monthly Reports) delivered conditions to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion designation of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting)such a rate have been satisfied. The Paying Agent shall not be liable for any action it takes, suffers failure or omits to take in good faith in reliance delay on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent its part to perform any permissive or discretionary act enumerated in its obligations under this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it that such failure or delay is a partydirect result of the unavailability of LIBOR (or other applicable replacement rate) and/or absence of a designated replacement rate.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account and the Warrant Reserve Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationFacility Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Distribution Date Statement, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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 Secured Party; provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence charged with knowledge of any such agent Unmatured Facility Termination Event or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting Facility Termination Event unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables and other Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible an Authorized Officer of the Paying Agent to receives written notice specifying that an Unmatured Facility Termination Event or Facility Termination Event has occurred from the contrary.
(p) The Paying Agent is authorizedBorrower, in its sole discretionthe Collateral Manager, to disregard any and all notices Lender or instructions given by any other party hereto or by Secured Party. The receipt and/or delivery of reports and other information (including, without limitation, any other Person other than any such notices or instructions as are expressly provided for in Distribution Date Statement) under this Agreement or the Account Control Agreement 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 Paying Agent is authorized, in its sole discretion, containing information relating to rely upon and comply with any such order, writ, judgment events or decree with circumstances 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 may constitute an Unmatured Facility Termination Event or decree it shall not be liable to any other party hereto or to any other Person by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information Facility Termination Event shall not constitute notice or actual or constructive knowledge of an Unmatured Facility Termination Event or noticeFacility Termination Event.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it is a party.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationFacility Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Compliance Certificate, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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. The Paying Agent shall not be charged with knowledge of any Unmatured Event of Default or Event of Default unless an Authorized a Responsible Officer of the Paying Agent receives written notice specifying that an Unmatured Event of Default or Event of Default has occurred from the Borrower, unless requested in writing so to do by a the Collateral Manager, any Agent or any other Secured Party; provided. The receipt and/or delivery of reports and other information (including, that if without limitation, any Compliance Certificate) under this Agreement by the payment within a reasonable time Paying Agent containing information relating to events or circumstances which may constitute an Unmatured Event of Default or Event of Default shall not constitute notice or actual or constructive knowledge of an Unmatured Event of Default or Event of Default.
(e) The Borrower agrees to pay to the Paying Agent of from time to time such compensation as agreed in writing between the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of Borrower and the Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lf) The Paying Agent may execute 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, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(g) The Paying 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, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, unless it shall have received security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the trusts or powers hereunder or perform any duties obligations of the Borrower under this Agreement either directly or by or through agents or attorneys or a custodian. Agreement.
(h) The Paying Agent shall not be responsible for any misconduct the acts or negligence omissions of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Facility Agent, the Borrower, the Servicer Collateral Manager, any Agent, any Lender or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this AgreementPerson. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Borrower Collateral.
(i) Any Person into which the Receivables and other Collateral. The Paying 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 Paying Agent shall not be liable for a party, or any action Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, without the execution or omission filing of any paper or any further act on the part of any of the parties hereto, anything herein to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYthe contrary notwithstanding.
(oj) If the Paying Agent shall at any time (i) be uncertain as to its duties or rights hereunder, (ii) receive instructions from any of the parties authorized to give instructions which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, or (iii) receive conflicting instructions from the Administrative Facility Agent and the Servicer or any other party authorized to this Agreement give instructions and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, then in each such case, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Facility Agent may rely and shall be protected incur no liability for acting in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contraryaccordance therewith.
(pk) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(ql) The Paying Agent shall incur no liability nor be responsible to the Borrower or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be imputed with any knowledge oflimited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or information possessed the unavailability of the Federal Reserve Bank wire or obtained by any other Person, or any affiliate, line of business, telex or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual wire or constructive knowledge or noticecommunication facility.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(vm) In no event shall the Paying Agent be liable either directly for any special, indirect, punitive, incidental or indirectly for losses consequential loss or delays resulting damage of any nature whatsoever arising from any Force Majeure Event to act or omission of the extent beyond Paying Agent’s reasonable control, whether or not the possibility of such damage was disclosed to, or could have been reasonably foreseen by, the Paying Agent and regardless of the form of action.
(wn) The rightsPaying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, benefitscertificate of an Authorized a Responsible Officer, protections any Compliance Certificate, 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 indemnities afforded to have been signed or presented by the proper party or parties.
(o) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Paying Agent is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Paying Agent. Accordingly, each of the parties agrees to provide to the Paying Agent hereunder shall apply equally upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Paying Agent under any other Basic Document to which it is a partycomply with applicable law.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
The Paying Agent. (a) The Borrower hereby appoints [***] Paying Agent shall agree to
(i) hold all sums held by it for the payment of the principal or redemption price of, or interest on, Bonds in trust for the benefit of the owners of such Bonds until such sums shall be paid to such owners or otherwise disposed of as herein provided;
(ii) at any time during the initial continuance of any default in the payment of principal or redemption price of or interest on the Bonds, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. All payments of amounts due ; and
(iii) keep such books and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account records as shall be made on behalf of the Borrower consistent with prudent industry practice and to make such books and records available for inspection by the Paying Agent in accordance with Section 2.08Issuer, the Trustee, and the Company at all reasonable times.
(b) The Paying Agent shall be compensated for its activities hereunder a corporation duly organized under the laws of the United States of America or any state or territory thereof, or a bank with trust powers or a trust company having a combined capital stock, surplus and undivided profits of at least $50,000,000 and authorized by law to perform all the Account Control Agreement duties imposed upon it by receiving the Paying Agent Feethis Indenture. The Paying Agent Fee shall may at any time resign and be payable in accordance with discharged of the priorities specified in Section 2.08 orduties and obligations created by this Indenture by giving at least 60 days’ notice to the Issuer, the Trustee, and the Company. In the event that the Issuer, at the option request of the ServicerCompany, may be paid directly shall fail to appoint a successor Paying Agent, upon the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any fee, damage, loss, liability resignation or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part removal of the Paying Agent, arising out the Trustee shall either appoint a Paying Agent or itself act as Paying Agent until the appointment of a successor Paying Agent. Any successor Paying Agent shall either be rated Baa/P-3 or in connection better by Moody’s or be otherwise acceptable to Moody’s if the Bonds are then rated by Moody’s. The Paying Agent may be removed at any time by an instrument signed by the Company, filed with (i) the performance of its obligations under and in accordance with this Agreement Issuer and the Account Control Agreement, including Trustee. In the costs and expenses event of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of the Paying Agent, the Paying Agent shall deliver any party Bonds and the termination or assignment of this Agreement. Anything moneys held by it in this Agreement or the Account Control Agreement such capacity to its successor or, if there is no successor, to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYTrustee.
(c) The Paying Agent in performing its duties hereunder shall be liable in accordance herewith only entitled to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, same protective provisions in the absence performance of bad faith on the part of the Paying Agent, the Paying Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed its duties as are specified in any certificates or opinions furnished to the Paying Agent pursuant to and conforming to the requirements Article XII of this Agreement.
(d) The Paying Agent shall not be liable for:
(i) an error of judgment made in good faith by one of its Responsible 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 Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or Indenture with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see Trustee hereunder to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to same extent and as fully for all intents and purposes as though the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have had been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance expressly named therein in place of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer such Trustee and as Custodian of books, Records, files and computer records relating to though the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the applicable provisions of Article XII of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or any other party hereto shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(k) The Paying 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 Secured Party; provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically Indenture had been set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction receivedat length.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables and other Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(p) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it is a party.
Appears in 1 contract
The Paying Agent. (a) The Borrower hereby appoints [***] Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.5 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08Agent.
(b) The Paying Agent shall be compensated for its activities hereunder and the Account Control Agreement by receiving the Paying Agent Fee. The Paying Agent Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly undertakes to the Paying Agent by the Servicer. The Borrower shall indemnify the Paying Agent and its officers, directors, employees and agents forperform such duties, and hold them harmless against any feeonly such duties, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower), other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the resignation or removal of any party and the termination or assignment of this Agreement. Anything as are expressly set forth in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Paying Agent shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(dc) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of a Secured Party relating to (y) the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent facts.
(e) The Paying Agent shall not be charged with knowledge of any event or informationFacility Agent, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Event or Unmatured Termination Event unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the Borrower, the Servicer, or any Secured Party, as the case may be, and shall have no duty to take any action to determine whether any such event has occurred.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(g) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person under this Agreement.
(h) The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(i) The Paying 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 Paying Agent in good faith in accordance therewith.
(j) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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 pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, Collateral Manager or any other party hereto shall have offered authorized to give instructions, or (z) with respect to payments pursuant to Section 8.5, at the Paying Agent security direction of the Collateral Manager as set forth in a Compliance Certificate, or indemnity reasonably satisfactory (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, which determination is no longer subject to it against the costs, expenses and liabilities that may be incurred therein appeal or therebyreview.
(kd) The Paying 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. The Paying Agent shall not be charged with knowledge of any Unmatured Event of Default or Event of Default unless an Authorized Officer of the Paying Agent receives written notice specifying that an Unmatured Event of Default or Event of Default has occurred from the Borrower, unless requested in writing so to do by a the Collateral Manager, any Agent or any other Secured Party; provided. The receipt and/or delivery of reports and other information (including, that if without limitation, any Compliance Certificate) under this Agreement by the payment within a reasonable time Paying Agent containing information relating to events or circumstances which may constitute an Unmatured Event of Default or Event of Default shall not constitute notice or actual or constructive knowledge of an Unmatured Event of Default or Event of Default.
(e) The Borrower agrees to pay to the Paying Agent of from time to time such compensation as agreed in writing between the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of Borrower and the Paying Agent, not reasonably assured by the Borrower, the Paying Agent may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Paying Agent, shall be reimbursed by the Borrower pursuant to Section 2.08.
(lf) The Paying Agent may execute 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, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(g) The Paying 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, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, unless it shall have received security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the trusts or powers hereunder or perform any duties obligations of the Borrower under this Agreement either directly or by or through agents or attorneys or a custodian. Agreement.
(h) The Paying Agent shall not be responsible for any misconduct the acts or negligence omissions of any such agent or custodian appointed with due care by it hereunder.
(m) The Paying Agent shall have no duties or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from the Administrative Agent, the Borrower or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, and the Paying Agent shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor to the Administrative Facility Agent, the Borrower, the Servicer Collateral Manager, any Agent, any Lender or any other person, and shall further be entitled to conclusively rely on any such instruction received.
(n) The Paying Agent may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this AgreementPerson. The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Receivables and other any Borrower Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(o) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Servicer 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 Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party to this Agreement in respect of any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(p) The Paying 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 other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement 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 Paying 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 by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(q) The Paying Agent shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to the Paying Agent and any other publicly available information shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting). The Paying Agent shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(s) Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(u) The Paying Agent shall not be responsible for the recitals in this Agreement (which are the statements of the Borrower).
(v) In no event shall Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to the extent beyond Paying Agent’s reasonable control.
(w) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally to the Paying Agent under any other Basic Document to which it is a party.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
The Paying Agent. (a) The Borrower Lenders hereby appoints [***] appoint Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 2.12 shall be made on behalf of the Borrower by the Paying Agent in accordance with Section 2.08based on the Monthly Servicing Report (upon which the Paying Agent shall be entitled to conclusively rely).
(b) The Paying Agent ▇▇▇▇▇▇ agrees that, subject to the provisions of this Section, it shall hold any sums held by it for the payment of amounts due with respect to the Obligations in trust for the benefit of the Persons entitled thereto until such sums shall be compensated for its activities hereunder paid to such Persons or otherwise disposed of as herein provided and the Account Control Agreement by receiving the pay such sums to such Persons as herein provided;
(c) Each Paying Agent Fee. The (other than the initial Paying Agent Fee Agent) shall be payable appointed by the Lenders with the prior written consent of the Company (if required), in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly to the Paying Agent by the Servicer. 2.20(r).
(d) The Borrower Company shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any fee, damage, loss, liability or expense incurred (including the reasonable fees and expenses of counsel and court costs, including, without limitation, those incurred in connection with any enforcement (including any action, claim, or suit brought) by the Paying Agent of any indemnification or other obligation of Borrower)incurred, other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Paying Agent in the performance of the Paying Agent’s obligations hereunder, arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement and the Account Control Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement or the Account Control Agreement and (ii) the negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder or thereunderAgreement. All such amounts shall be payable in accordance with Section 2.08. The provisions 2.12 and such indemnity shall survive the termination of this Section shall survive Agreement and the resignation or removal of any party and the termination or assignment of this Agreement. Anything in this Agreement or the Account Control Agreement to the contrary notwithstanding, in no event shall Paying Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if Paying Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITYAgent.
(ce) The Paying Agent shall be liable undertakes to perform such duties, and only such duties, as are expressly set forth in accordance herewith only to the extent of the obligations specifically undertaken by the Paying Agent in such capacity herein and under the Account Control this Agreement. No implied covenants or obligations shall be read into this Agreement or the Account Control Agreement against the Paying Agent and, in the absence of bad faith on the part of the Paying Agent, the . The Paying 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 Paying Agent pursuant to and conforming to the requirements of this Agreement.
(df) The Paying Agent shall not be liable for:
for any action taken or not taken by it (i) an error of judgment made in good faith by one of its Responsible 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 consent or at the direction or request of Requisite Lenders or the Administrative Agent or other relevant instructing party expressly permitted hereunder, or (ii) in the absence of its own, gross negligence, bad faith or willful misconduct as determined by a Secured Party relating court of competent jurisdiction, no longer subject to the exercise of any power conferred upon the Paying Agent under this Agreement in each case unless it shall be proved that the Paying Agent shall have been negligent in ascertaining the pertinent factsappeal or review.
(eg) The Paying Agent shall not be charged with knowledge of any event or information, including any Early Amortization Event, Servicer Termination Event, Unmatured Servicer Termination Event, Termination Default or Event or Unmatured Termination Event of Default unless a Responsible Officer of the Paying Agent obtains actual knowledge of such event or receives written notice of such event or information from the BorrowerCompany, the Servicer, Servicer or any Secured Partythe Administrative Agent, as the case may be. The receipt and/or delivery of reports and other information under this Agreement by the Paying Agent, and any publicly-available information, shall have no duty to take any action to determine whether not constitute notice or actual or constructive knowledge of any such event has occurredor information, including any Default or Event of Default contained therein.
(f) Without limiting the generality of this Section, the Paying Agent shall have no duty (i) to see to, or with respect to the accuracy of, any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any Insurance Policy on the Financed Vehicles or Obligors or to effect or maintain any such Insurance Policy, (iii) to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Contracts, (iv) to re-calculate or confirm or verify the contents of any reports or certificates of the Servicer or the Borrower or any other Person delivered to the Paying Agent pursuant to this Agreement or the Account Control Agreement believed by the Paying Agent to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations and warranties or covenants or the Servicer’s duties and obligations as Servicer and as Custodian of books, Records, files and computer records relating to the Contracts under this Agreement.
(gh) The Paying 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 ground 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 Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer, the Borrower or any other Person Company under this Agreement.
(hi) The Paying Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer’s Certificate, any Monthly Servicing 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. The Paying Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
(ij) The Paying 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 Paying Agent in good faith and in accordance therewith.
(jk) The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to undertake any discretionary action, 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, any Lender or any Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, such Lender or any other party hereto such Agent shall have offered to the Paying Agent security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(kl) The Paying 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 Secured Partythe Administrative Agent (at the direction of the Requisite Lenders); provided, that if the payment within a reasonable time to the Paying 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 Paying Agent, not reasonably assured by the BorrowerCompany, the Paying Agent may require reasonable indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower Company or, if paid by the Paying Agent, shall be reimbursed by the Borrower Company to the extent of funds available therefor pursuant to Section 2.08.
(l) The Paying Agent may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Paying Agent shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder2.12.
(m) The Paying Agent shall have no duties not be responsible for the acts or responsibilities except those that are specifically set forth herein and the other Basic Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent shall have the right to request instructions from omissions of the Administrative Agent, the Borrower Company, the Servicer, any Agent, any Lender or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreementother Person, and the Paying Agent shall be entitled to refrain from taking may assume compliance by such action and continue to refrain from acting parties with their obligations, unless and until a Responsible Officer of the Paying Agent shall have received written instructions from the Administrative Agent, the Borrower or the Servicer, as applicable, without incurring any liability therefor notice to the Administrative Agent, the Borrower, the Servicer or any other person, and shall further be entitled to conclusively rely on any such instruction receivedcontrary.
(n) Any Person into which the Paying 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 Paying Agent shall be a party, or any Person succeeding to the business of the Paying Agent, shall be the successor of the Paying 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.
(o) The Paying Agent may act shall not be liable for ensuring that the Secured Parties’ interest in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Paying Agent is valid or enforceable, and does not assume and shall have no responsibility for, and makes no representation as to, monitoring the status of any lien or performance or value of the Receivables and other any Collateral. The Paying Agent shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(op) If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Company or the Servicer 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 Paying Agent shall be entitled to rely on follow the instructions of the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on the part of the Paying Agent, the Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Monthly 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 Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Paying Agent shall not be liable to the Servicer or any other party parties to this Agreement in respect of will hold the Paying Agent harmless from any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose. The Paying Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party, except as may otherwise be specifically set forth herein, and may assume performance thereby absent actual knowledge of, or written notice to, a Responsible Officer of the Paying Agent to the contrary.
(pq) The Paying 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 other than any person, firm or corporation, except only such notices or instructions as are expressly herein provided for in this Agreement or the Account Control Agreement 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 Paying 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 itdecree, 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 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.
(qr) The Paying Agent may: (i) terminate its obligations as Paying Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Company, the Servicer and the Administrative Agent; provided, however, that, without the consent of the Administrative Agent, such resignation shall not be effective until a successor Paying Agent reasonably acceptable to the Administrative Agent and, so long as no Event of Default is then existing, the Company (such consent not to be unreasonably withheld or delayed) shall have accepted appointment by the Lenders as Paying Agent, pursuant hereto and shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time upon thirty (30) days’ written notice by the Administrative Agent (acting at the direction of the Requisite Lenders), delivered to the Paying Agent, the Company and the Servicer. In the event of such termination or removal, the Lenders with, so long as no Event of Default is then existing, the consent of the Company (such consent not to be unreasonably withheld or delayed) shall appoint a successor paying agent. If, however, a successor paying agent is not appointed by the Lenders within sixty (60) days after the giving of notice of resignation or removal, the Paying Agent may petition a court of competent jurisdiction for the appointment of a successor Paying Agent.
(s) Any successor Paying Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Company, the Servicer, the Administrative Agent, and to the predecessor Paying Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Paying Agent shall become effective and such successor Paying Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Paying Agent under this Agreement, with like effect as if originally named as Paying Agent. The predecessor Paying Agent shall upon payment of its fees and expenses deliver to the successor Paying Agent all documents and statements and monies held by it under this Agreement; and the Company and the predecessor Paying Agent shall execute and deliver such instruments and do such other things as may reasonably be requested for fully and certainly vesting and confirming in the successor Paying Agent all such rights, powers, duties, and obligations.
(t) The Company shall reimburse the Paying Agent for the reasonable out-of-pocket expenses of the Paying Agent actually incurred in connection with the succession of any successor Paying Agent including in transferring any funds in its possession to the successor Paying Agent.
(u) The Paying Agent shall not be imputed with have no obligation to invest and reinvest any knowledge of, cash held in the Collection Account or information possessed or obtained by any other Person, or any affiliate, line of business, or other division of [***] (and vice versa). Information contained in any reports (including Monthly Reports) delivered to moneys held by the Paying Agent pursuant to this Agreement in the absence of timely and any other publicly available information specific written investment direction from Company. In no event shall not constitute actual or constructive knowledge or notice.
(r) Before the Paying Agent acts be liable for the selection of investments or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, as applicable (at the expense of the party requesting the Paying Agent act or refrain from acting)for investment losses incurred thereon. The Paying Agent shall not be liable for have no liability in respect of losses incurred as a result of the liquidation of any action it takes, suffers investment prior to its stated maturity or omits the failure of the Company to take in good faith in reliance on such Officer’s Certificate or Opinion of Counselprovide timely written investment direction.
(sv) Notwithstanding anything If the Paying Agent shall be uncertain as to its duties or rights hereunder or under any other Credit Documents or shall receive instructions from any of the parties hereto pursuant to this Agreement which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement or another Credit Document to which it is a party, the Paying Agent shall be entitled (without incurring any liability therefor to the contrary Company or any other Person) to (i) consult with counsel of its choosing and act or refrain from acting based on the advice of such counsel and (ii) refrain from taking any action until it shall be directed otherwise in writing by all of the parties hereto or by final order of a court of competent jurisdiction.
(w) The Paying Agent shall incur no liability nor be responsible to Company or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be limited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(x) The Paying Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, provided that the Paying Agent shall remain obligated and liable for the administration of its duties hereunder, to the same extent and under the same terms and conditions as if it alone were acting as Paying Agent.
(y) The Paying Agent shall not be required to take any action that is not in accordance with Applicable Law.
(t) applicable law. The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any related document shall not be construed as a duty.
(uz) Knowledge of the Paying Agent shall not be attributed or imputed to Deutsche Bank Trust Company Americas’ other roles in the transaction and knowledge of the Custodian, Collateral Agent or Controlled Account Bank shall not be attributed or imputed to the Paying Agent (other than those where the roles are performed by the same group or division within Deutsche Bank Trust Company Americas or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Deutsche Bank Trust Company Americas (and vice versa).
(aa) The Paying Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting any security interest in the recitals Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Paying Agent shall have no responsibility for (A) monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in this Agreement or related to the Collateral, (which are the statements B) taking any necessary steps to preserve rights against any Person with respect to any Collateral, or (C) taking any action to protect against any diminution in value of the Borrower)Collateral.
(vbb) In no event shall The Lenders hereby authorize and direct the Paying Agent be liable either directly or indirectly for losses or delays resulting from any Force Majeure Event to execute and deliver the extent beyond Paying Agent’s reasonable controlUndertakings Agreement.
(wcc) The rights, benefits, protections and indemnities afforded to the Paying Agent hereunder shall apply equally have no (i) responsibility or liability for determining or verifying the Base Rate or Benchmark and shall be entitled to rely upon any designation of such a rate (and any modifier) by the Paying Administrative Agent under any other Basic Document to which it is a party.or Requisite Lenders a
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