Common use of Standard of Care; Exculpatory Provisions Clause in Contracts

Standard of Care; Exculpatory Provisions. If an Exchange Note Default, a Warehouse Facility Termination Event or an Event of Bankruptcy with respect to the Borrower has occurred and is continuing, the Closed-End Administrative Agent will exercise the rights and powers vested in it by this Collateral Agency Agreement 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. (a) Except during the continuance of an Exchange Note Default, a Warehouse Facility Termination Event or an Event of Bankruptcy: (i) the Closed-End Administrative Agent undertakes to perform such duties and only such duties as are specifically set forth in this Collateral Agency Agreement and no implied covenants or obligations are to be read into this Collateral Agency Agreement against the Closed-End Administrative Agent; and (ii) in the absence of bad faith on its part, the Closed-End Administrative Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions furnished to it, upon any certificates or opinions furnished to it and, if required by the terms of this Collateral Agency Agreement, conforming to the requirements of this Collateral Agency Agreement, provided that the Closed-End Administrative Agent will examine any such certificates and opinions to determine whether or not they conform on their face to the requirements of this Collateral Agency Agreement. (b) The Closed-End Administrative Agent will not be liable for any action it takes or omits to take in the absence of bad faith which it believes to be authorized or within its rights or powers. However, the Closed-End Administrative Agent may not be relieved from liability for its own willful misconduct, negligence or bad faith, except that: (i) this Section 5.3(b) does not limit Section 5.4; (ii) the Closed-End Administrative Agent will not be liable for any error of judgment made in the absence of bad faith by an Authorized Officer unless it is proved that the Closed-End Administrative Agent was negligent in ascertaining the pertinent facts; and (iii) the Closed-End Administrative Agent will not be liable with respect to any action it takes or omits to take in the absence of bad faith with respect to any exercise of remedies pursuant to Article VIII in accordance with a direction received by it from the Person or Persons entitled under this Collateral Agency Agreement to direct the Closed-End Administrative Agent with respect to such action or omission. (c) The Closed-End Administrative Agent will not be liable for interest on any money received by it except as the Closed-End Administrative Agent may agree with the Borrower. (d) Money held in trust by the Closed-End Administrative Agent need not be segregated from other funds except to the extent required by law or this Collateral Agency Agreement. (e) The Closed-End Administrative Agent is not required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Collateral Agency Agreement or in the exercise of any of its rights or powers by any provision of this Collateral Agency Agreement if it has reasonable grounds to believe that repayment of funds advanced by it or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it. (f) Every provision of this Collateral Agency Agreement relating to the conduct or affecting the liability of or affording protection to the Closed-End Administrative Agent is subject to the provisions of this Section 5.3. (g) The Closed-End Administrative Agent will not be charged with knowledge of the occurrence of any Event of Bankruptcy, Exchange Note Default or Warehouse Facility Termination Event unless either (i) an Authorized Officer of the Closed-End Administrative Agent has actual knowledge of such occurrence or (ii) notice of such occurrence has been given to the Closed-End Administrative Agent in accordance with this Collateral Agency Agreement.

Standard of Care; Exculpatory Provisions. If an Exchange Note Default, a Warehouse Facility Termination Event or an Event of Bankruptcy with respect to the Borrower has occurred and is continuing, the Closed-End Administrative Agent will exercise the rights and powers vested in it by this Collateral Agency Agreement 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. (a) Except during the continuance of an Exchange Note Default, a Warehouse Facility Termination Event or an Event of Bankruptcy: (i) the Closed-End Administrative Agent undertakes to perform such duties and only such duties as are specifically set forth in this Collateral Agency Agreement and no implied covenants or obligations are to be read into this Collateral Agency Agreement against the Closed-End Administrative Agent; and (ii) in the absence of bad faith on its part, the Closed-End Administrative Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions furnished to it, upon any certificates or opinions furnished to it and, if required by the terms of this Collateral Agency Agreement, conforming to the requirements of this Collateral Agency Agreement, provided that the Closed-End Administrative Agent will examine any such certificates and opinions to determine whether or not they conform on their face to the requirements of this Collateral Agency Agreement. (b) The Closed-End Administrative Agent will not be liable for any action it takes or omits to take in the absence of bad faith which it believes to be authorized or within its rights or powers. However, the Closed-End Administrative Agent may not be relieved from liability for its own willful misconduct, negligence or bad faith, except that: (i) this Section 5.3(b) does not limit Section 5.4; (ii) the Closed-End Administrative Agent will not be liable for any error of judgment made in the absence of bad faith by an Authorized Officer unless it is proved that the Closed-End Administrative Agent was negligent in ascertaining the pertinent facts; and (iii) the Closed-End Administrative Agent will not be liable with respect to any action it takes or omits to take in the absence of bad faith with respect to any exercise of remedies pursuant to Article VIII in accordance with a direction received by it from the Person or Persons entitled under this Collateral Agency Agreement to direct the Closed-End Administrative Agent with respect to such action or omission. (c) The Closed-End Administrative Agent will not be liable for interest on any money received by it except as the Closed-End Administrative Agent may agree with the Borrower. (d) Money held in trust by the Closed-End Administrative Agent need not be segregated from other funds except to the extent required by law or this Collateral Agency Agreement. (e) The Closed-End Administrative Agent is not required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Collateral Agency Agreement or in the exercise of any of its rights or powers by any provision of this Collateral Agency Agreement if it has reasonable grounds to believe that repayment of funds advanced by it or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it. (f) Every provision of this Collateral Agency Agreement relating to the conduct or affecting the liability of or affording protection to the Closed-End Administrative Agent is subject to the provisions of this Section 5.3. (g) The Closed-End Administrative Agent will not be charged with knowledge of the occurrence of any Event of Bankruptcy, Exchange Note Default or Warehouse Facility Termination Event unless either (i) an Authorized Officer of the Closed-End Administrative Agent has actual knowledge of such occurrence or (ii) notice of such occurrence has been given to the Closed-End Administrative Agent in accordance with this Collateral Agency Agreement.