Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence): (a) the Owner Trustee shall not be liable for any error of judgment made in good faith by the Owner Trustee; (b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders; (c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; (d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates; (e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein; (f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement; (g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act; (h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and (i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement.
Appears in 9 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2015-1), Trust Agreement (Daimler Retail Receivables LLC), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2013-1)
Acceptance of Duties. The Owner Trustee accepts the trusts trust hereby continued and agrees to perform its duties with respect to such trustshereunder, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it in accordance with the Basic Documents and constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documentsof this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner TrusteeTrustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator Administrator, the Depositor, the Indenture Trustee, the Master Servicer or the Certificateholders;
(c) no provision of the this Agreement or any other Basic Documents Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on payments to the CertificatesCertificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any SecurityholderNoteholder or Certificateholder, other than as expressly provided for hereinin the Basic Documents;
(f) the Owner Trustee shall not be liable for the default default, negligence or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Master Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Master Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and , the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful misconduct, bad faith or negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, war or other circumstances beyond its reasonable control, the Owner Trustee shall be prevented from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any directions provided for herein.
Appears in 6 contracts
Samples: Trust Agreement (WDS Receivables LLC), Trust Agreement (Wachovia Auto Loan Owner Trust 2007-1), Trust Agreement (WDS Receivables LLC)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 4 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2021-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2021-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2020-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other Person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, each Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the duty and responsibility of the Administrator, and not of the Owner Trustee, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 4 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2023-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2023-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2022-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other Person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, each Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to it; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by it; or (iii) subject it to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by it contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the duty and responsibility of the Administrator, and not of the Owner Trustee, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 4 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2024-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2024-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2023-2)
Acceptance of Duties. The Owner Trustee accepts the trusts trust hereby continued and agrees to perform its duties with respect to such trustshereunder, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it in accordance with the Basic Documents and constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documentsof this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner TrusteeTrustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator Administrator, the Depositor, the Indenture Trustee, the Servicer or the Certificateholders;
(c) no provision of the this Agreement or any other Basic Documents Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on payments to the CertificatesCertificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any SecurityholderNoteholder or Certificateholder, other than as expressly provided for hereinin the Basic Documents;
(f) the Owner Trustee shall not be liable for the default default, negligence or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful misconduct, bad faith or negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, war or other circumstances beyond its reasonable control, the Owner Trustee shall be prevented from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any directions provided for herein.
Appears in 2 contracts
Samples: Trust Agreement (Wachovia Auto Owner Trust 2005-A), Trust Agreement (Wachovia Auto Owner Trust 2004-B)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee it security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee it therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other Person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee it and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, each Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to it; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by it; or (iii) subject it to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by it contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the duty and responsibility of the Administrator, and not of the Owner Trustee, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Trucks Retail Trust 2022-1), Trust Agreement (Daimler Trucks Retail Trust 2022-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to itassured;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement. To the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (x) special, consequential or punitive damages, however styled, including, without limitation, lost profits or (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets. To help the government fight the funding of terrorism and money laundering activities, Applicable Anti-Money Laundering Law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. Accordingly, in order to comply with Applicable Anti-Money Laundering Law, the Owner Trustee is required to obtain on or before closing and from time to time thereafter documentation to verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Owner Trustee will ask for documentation to verify its formation and existence as a legal entity, financial statements, licenses, tax identification documents, and identification and authorization documents from individuals claiming authority to represent the entity and other relevant documentation and information (including beneficial owners of such entities). The Owner Trustee may, to the fullest extent permitted by applicable law, including Applicable Anti-Money Laundering Law, conclusively rely on, and shall be fully protected and indemnified in relying on, any information received, and failure to provide such information may result in an inability of the Owner Trustee to perform its obligations hereunder which, at the sole option of the Owner Trustee, may result in the immediate resignation of the Owner Trustee, notwithstanding anything to the contrary in this Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2018-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2018-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to itassured;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Retail Receivables LLC), Trust Agreement (Daimler Retail Receivables LLC)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Trucks Retail Trust 2020-1), Trust Agreement (Daimler Trucks Retail Trust 2020-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to perform the duties and obligations related to a transition from the then-current Benchmark, including but not limited to the determination of a Benchmark Transition Event and its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes pursuant to the terms of the Indenture. The Owner Trustee shall not have any obligation or duty to perform such calculations including any calculations related to a transition from the then-current Benchmark pursuant to the terms of the Indenture;
(r) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2019-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2019-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Receivables Trust 2016-1), Trust Agreement (Mercedes-Benz Auto Receivables Trust 2016-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee it security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee it therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other Person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee it and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, each Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to it; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by it; or (iii) subject it to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by it contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the duty and responsibility of the Administrator, and not of the Owner Trustee, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Trucks Retail Trust 2023-1), Trust Agreement (Daimler Trucks Retail Trust 2023-1)
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee it security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee it therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other Person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee it and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by Applicable Law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, each Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to it; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by it; or (iii) subject it to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by it contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the duty and responsibility of the Administrator, and not of the Owner Trustee, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Trucks Retail Trust 2024-1), Trust Agreement (Daimler Trucks Retail Trust 2024-1)
Acceptance of Duties. The Owner Trustee Depositary accepts the trusts hereby continued and agrees to perform its duties with respect to such trustsimposed on it by this Indenture, but only upon on the following express terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):conditions:
(a) The Depositary undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations will be read into this Indenture against the Owner Trustee shall not be liable for any error of judgment made in good faith Depositary. Unless previously terminated by the Owner Trustee;Company, the Depositary’s duties hereunder will continue, subject to the provisions of Section 9.04, until the occurrence of the Completion Date and the disbursement of all moneys remaining on deposit in the Acquisition Account as provided in Section 6.05.
(b) In the Owner Trustee shall not be liable with respect absence of gross negligence or willful misconduct on its part, the Depositary may conclusively rely on certificates or notices furnished to the Depositary and conforming on their faces to the requirements of this Indenture or the Lease, as the case may be; but if any action taken such certificates or omitted notices are specifically required to be taken in good faith by it in accordance with furnished to the provisions Depositary under this Indenture or the Lease, the Depositary will examine the same to determine whether they conform on their faces to the requirements of this Agreement at the instructions of the Administrator Indenture or the Certificateholders;Lease, as the case may be.
(c) no No provision of this Indenture will be construed to relieve the Basic Documents shall Depositary from liability for its own gross negligence or willful misconduct.
(d) The Depositary may consult with counsel and other professionals and the advice of such counsel and other professionals will be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Depositary hereunder in good faith and in reliance thereon.
(e) The Depositary will be under no obligation to take any action or exercise any right or power under this Indenture unless the Purchaser has provided to the Depositary, its directors, officers, agents and employees, security or indemnity satisfactory to the Depositary against the reasonable fees, costs (including without limitation reasonable fees of attorneys), expenses and liabilities that might be incurred by the Depositary in connection therewith.
(f) The recitals contained herein and in the Bonds will be taken as the statements of the Company, and the Depositary assumes no responsibility for their correctness. The Depositary makes no representations as to the validity or sufficiency of this Indenture or of the Bonds. The Depositary will not be accountable for the use or application by the Issuer or the Company of the Bonds or the proceeds thereof.
(g) Money held by the Depositary hereunder need not be segregated from other funds except to the extent required by law. The Depositary will be under no liability for any interest on any money received by it hereunder except as otherwise provided in Section 6.07.
(h) None of the provisions contained in this Indenture will require the Owner Trustee Depositary to expend use or risk advance its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreementhereunder.
Appears in 1 contract
Samples: Indenture
Acceptance of Duties. The Owner Trustee accepts the trusts trust hereby continued and agrees to perform its duties with respect to such trustshereunder, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it in accordance with the Basic Documents and constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documentsof this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner TrusteeTrustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator Administrator, the Depositor, the Indenture Trustee, the Servicer or the Certificateholders;
(c) no provision of the this Agreement or any other Basic Documents Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on payments to the CertificatesCertificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and countersignature of the Owner Trustee and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any SecurityholderNoteholder or Certificateholder, other than as expressly provided for hereinin the Basic Documents;
(f) the Owner Trustee shall not be liable for the default default, negligence or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful misconduct, bad faith or negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, war or other circumstances beyond its reasonable control, the Owner Trustee shall be prevented from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any directions provided for herein.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act; provided that, if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee accepts the trusts trust hereby continued and agrees to perform its duties with respect to such trustshereunder, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it in accordance with the Basic Documents and constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documentsof this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner TrusteeTrustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator Administrator, the Depositor, the Indenture Trustee, the Servicer or the Certificateholders;
(c) no provision of the this Agreement or any other Basic Documents Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on payments to the CertificatesCertificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any SecurityholderNoteholder or Certificateholder, other than as expressly provided for hereinin the Basic Documents;
(f) the Owner Trustee shall not be liable for the default default, negligence or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and , the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful misconduct, bad faith or negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, war or other circumstances beyond its reasonable control, the Owner Trustee shall be prevented from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any directions provided for herein.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee accepts the trusts trust hereby continued and agrees to perform its duties with respect to such trustshereunder, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it in accordance with the Basic Documents and constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documentsof this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner TrusteeTrustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator Administrator, the Depositor, the Indenture Trustee, the Master Servicer or the Certificateholders;
(c) no provision of the this Agreement or any other Basic Documents Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on payments to the CertificatesCertificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any SecurityholderNoteholder or Certificateholder, other than as expressly provided for hereinin the Basic Documents;
(f) the Owner Trustee shall not be liable for the default default, negligence or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Master Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Master Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful misconduct, bad faith or negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, war or other circumstances beyond its reasonable control, the Owner Trustee shall be prevented from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any directions provided for herein.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee Depositary accepts the trusts hereby continued and agrees to perform its duties with respect to such trustsimposed on it by this Indenture, but only upon on the following express terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):conditions:
(a) The Depositary undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations will be read into this Indenture against the Owner Trustee shall not be liable for any error of judgment made in good faith Depositary. Unless previously terminated by the Owner Trustee;Company, the Depositary’s duties hereunder shall continue, subject to the provisions of Subsection 9.04(d), until the occurrence of the Series 2018 Project Completion Date and the disbursement of all moneys remaining on deposit in the Acquisition Account as provided in Section 6.05.
(b) In the Owner Trustee shall not be liable with respect absence of gross negligence or willful misconduct on its part, the Depositary may conclusively rely on certificates or notices furnished to the Depositary and conforming on their faces to the requirements of this Indenture or the Lease, as the case may be; but if any action taken such certificates or omitted notices are specifically required to be taken in good faith by it in accordance with furnished to the provisions Depositary under this Indenture or the Lease, the Depositary will examine the same to determine whether they conform on their faces to the requirements of this Agreement at the instructions of the Administrator Indenture or the Certificateholders;Lease, as the case may be.
(c) no No provision of this Indenture will be construed to relieve the Basic Documents Depositary from liability for its own gross negligence or willful misconduct.
(d) The Depositary may consult with counsel and other professionals and the advice of such counsel and other professionals shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Depositary hereunder in good faith and in reliance thereon.
(e) The Depositary shall be under no obligation to take any action or exercise any right or power under this Indenture unless the Series 2011 Purchaser or the Series 2018 Purchaser shall first have provided to the Depositary, its directors, officers, agents and employees, security or indemnity satisfactory to the Depositary against the reasonable fees, costs (including without limitation reasonable fees of attorneys), expenses and liabilities that might be incurred by the Depositary in connection therewith.
(f) [Reserved].
(g) The recitals contained herein and in the Bonds shall be taken as the statements of the Company, and the Depositary assumes no responsibility for their correctness. The Depositary makes no representations as to the validity or sufficiency of this Indenture or of the Bonds. The Depositary shall not be accountable for the use or application by the Issuer or the Company of the Bonds or the proceeds thereof.
(h) Money held by the Depositary in trust hereunder need not be segregated from other funds except to the extent required by law. The Depositary shall be under no liability for any interest on any money received by it hereunder except as otherwise provided in Section 6.07 of this Indenture.
(i) None of the provisions contained in this Indenture shall require the Owner Trustee Depositary to expend use or risk advance its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreementhereunder.
Appears in 1 contract
Samples: Indenture
Acceptance of Duties. The Owner Trustee Depositary accepts the trusts hereby continued and agrees to perform its duties with respect to such trustsimposed on it by this Indenture, but only upon on the following express terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):conditions:
(a) The Depositary undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations will be read into this Indenture against the Owner Trustee shall not be liable for any error of judgment made in good faith Depositary. Unless previously terminated by the Owner Trustee;Company, the Depositary’s duties hereunder shall continue, subject to the provisions of Section 9.04, until the occurrence of the Completion Date and the disbursement of all moneys remaining on deposit in the Acquisition Account as provided in Section 6.05.
(b) In the Owner Trustee shall not be liable with respect absence of gross negligence or willful misconduct on its part, the Depositary may conclusively rely on certificates or notices furnished to the Depositary and conforming on their faces to the requirements of this Indenture or the Lease, as the case may be; but if any action taken such certificates or omitted notices are specifically required to be taken in good faith by it in accordance with furnished to the provisions Depositary under this Indenture or the Lease, the Depositary will examine the same to determine whether they conform on their faces to the requirements of this Agreement at the instructions of the Administrator Indenture or the Certificateholders;Lease, as the case may be.
(c) no No provision of this Indenture will be construed to relieve the Basic Documents Depositary from liability for its own gross negligence or willful misconduct.
(d) The Depositary may consult with counsel and other professionals and the advice of such counsel and other professionals shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Depositary hereunder in good faith and in reliance thereon.
(e) The Depositary shall be under no obligation to take any action or exercise any right or power under this Indenture unless the Purchaser shall first have provided to the Depositary, its directors, officers, agents and employees, security or indemnity satisfactory to the Depositary against the reasonable fees, costs (including without limitation reasonable fees of attorneys), expenses and liabilities that might be incurred by the Depositary in connection therewith.
(f) The recitals contained herein and in the Bond shall be taken as the statements of the Company, and the Depositary assumes no responsibility for their correctness. The Depositary makes no representations as to the validity or sufficiency of this Indenture or of the Bond. The Depositary shall not be accountable for the use or application by the Issuer or the Company of the Bond or the proceeds thereof.
(g) Money held by the Depositary in trust hereunder need not be segregated from other funds except to the extent required by law. The Depositary shall be under no liability for any interest on any money received by it hereunder except as otherwise provided in Section 6.07 of this Indenture.
(h) None of the provisions contained in this Indenture shall require the Owner Trustee Depositary to expend use or risk advance its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreementhereunder.
Appears in 1 contract
Samples: Indenture
Acceptance of Duties. (a) The Owner Trustee by execution hereof accepts the trusts hereby continued and agrees to perform its duties with respect to such trustsfulfill the trusts imposed upon it by this Trust Indenture, but only upon the terms and conditions set forth in this Article and subject to the provisions of this AgreementTrust Indenture. Prior to the occurrence of any Event of Default hereunder and after the curing of any Events of Default that may have occurred, the Trustee shall perform such duties and only such duties of the Trustee as are specifically set forth in this Trust Indenture. During the existence of any such Event of Default that has not been cured, the Trustee shall exercise such of the rights and powers vested in it by this Trust Indenture, and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. The Owner Trustee also agrees to disburse all monies actually received by it constituting part shall comply with the provisions of the Trust Property upon Indenture Act to the terms set forth in extent applicable.
(b) No provision of this Trust Indenture, the Basic Documents. The Owner Notes or the Collateral Agreement shall be construed to relieve the Trustee shall not be answerable from liability for its own negligent action, its own negligent failure to act, or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith except that:
(i) Unless an Event of Default shall have occurred and be continuing:
(A) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Trust Indenture and the Collateral Agreement and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth therein, and no implied covenants or negligence obligations shall be read into this Trust Indenture or the Collateral Agreement against the Trustee, and
(B) the Trustee may conclusively rely, as to the accuracy of the statements and the correctness of the opinions expressed therein, upon any certificate or opinion furnished to it by the Issuer and the Subsidiary conforming to the requirements of this Trust Indenture and the Collateral Agreement, and
(ii) in the case At all times, regardless of the inaccuracy whether or not any such Event of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):Default shall exist:
(aA) the Owner Trustee shall not be liable for any error of judgment made by a responsible officer or officers of the Trustee unless it shall be proved that the Trustee was negligent in good faith by ascertaining the Owner Trusteepertinent facts;
(bB) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith by it in accordance with the provisions of this Agreement at the instructions direction of the Administrator Owners as provided in Article VIII hereof, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any power conferred upon the Trustee under this Trust Indenture or the Certificateholders;Collateral Agreement, if any; and
(cC) no provision the Trustee may consult with counsel, and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(iii) None of the Basic Documents provisions contained in this Trust Indenture or the Collateral Agreement, if any, as applicable, shall require the Owner Trustee to expend or risk its own funds or otherwise incur any individual financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreementpowers.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee accepts the trusts hereby continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Owner Trust Property Estate upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust PropertyEstate, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its negligence, bad faith or willful misconduct in the performance of any such act;
(h) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and
(i) in the absence of negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement.
Appears in 1 contract
Acceptance of Duties. The Owner Trustee accepts the trusts hereby xxxxxx continued and agrees to perform its duties with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Trust Property upon the terms set forth in the Basic Documents. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith by any officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the provisions of this Agreement at the instructions of the Administrator or the Certificateholders;
(c) no provision of the Basic Documents shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for any representation, warranty, covenant, obligation of any other Person or indebtedness evidenced by or arising under any Basic Document, including the principal of and interest on the Notes or any amounts payable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Property, or for or in respect of the validity or sufficiency of the Basic Documents, other than the signature and the certificate of authentication of the Owner Trustee on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Securityholder, other than as expressly provided for herein;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, any Certificateholder, the Indenture Trustee, the Servicer or the Seller under any Basic Document or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Issuer under the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Seller, the Servicer or the Depositor under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, make any investigation of matters arising under this Agreement or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Basic Document, Document at the request, order or direction of any Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; and the right of the Owner Trustee to perform any discretionary act enumerated in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its gross negligence, bad faith or willful misconduct in the performance of any such act; provided, that if the Owner Trustee declines to take any actions in connection with a dispute resolution related to a repurchase request due to the failure of the requesting Certificateholder to provide reasonable security or indemnity or for any other reason, then such Certificateholder may exercise its rights related to dispute resolution directly as the “Requesting Party” pursuant to Section 3.17 of the Sale and Servicing Agreement;
(h) in no event will the Owner Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention requirements for asset-backed securities or other rules or regulations relating to credit risk retention; the Owner Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Depositor, the Servicer or any other person for violation of such rules now or hereinafter in effect;
(i) the Owner Trustee shall have no responsibility for the accuracy of any information provided to Certificateholders or any other individual or entity that has been obtained from, or provided to the Owner Trustee by, any other Person; and;
(ij) in the absence of gross negligence or bad faith on its part, the Owner Trustee may conclusively rely upon certificates or Opinions of Counsel furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the truthfulness of the statements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have examined such certificates or Opinions of Counsel so as to determine compliance of the same with the requirements of this Agreement;
(k) to the fullest extent permitted by law and notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (i) special, consequential or punitive damages, however styled, including lost profits or (ii) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Issuer resulting from any event beyond the reasonable control of the Owner Trustee, its agents or subcustodians, including nationalization, strikes, expropriation, devaluation, seizure or similar action by any Governmental Authority, de facto or de jure; enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levies or other charges affecting the Issuer’s property; the breakdown, failure or malfunction of any utilities or telecommunications systems; any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; acts of war, terrorism, insurrection or revolution; epidemic or pandemic, quarantine, shelter-in-place or similar directive, guidance, policy or other action by any Governmental Authority; acts of God; or any other similar event;
(m) the Owner Trustee shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trusts or powers under this Agreement or any other Basic Document or the performance of its duties hereunder;
(n) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Certificateholder agrees that the Owner Trustee in any capacity (i) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Issuer under the Basic Documents and shall have no liability in connection therewith and (iii) the Owner Trustee has not prepared or verified, and shall not be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document or in any other document issued or delivered in connection with the sale or transfer of the Notes;
(o) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any Governmental Authority other than the State of Delaware by or with respect to the Owner Trustee; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Issuer) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence; and in the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Owner Trustee may, or if instructed to do so by the Depositor, shall appoint an additional trustee pursuant to Section 10.05 to proceed with such action;
(p) it shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any Proceeding or inquiry relating in any way to the Issuer, its assets or the conduct of its business; provided, that the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to the Administrator in the Owner Trustee’s actual possession relating to any such Proceeding or inquiry;
(q) the Owner Trustee shall not have any obligation or duty to supervise or monitor the performance of any other Person and shall have no liability for the failure of any other Person to perform its obligations or duties under the Basic Documents or otherwise; and
(r) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or event.
Appears in 1 contract
Samples: Trust Agreement (Daimler Trucks Retail Receivables LLC)
