Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this Agreement. No implied covenants or obligations shall be read into this Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence: (a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence; (b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement and the Indenture; (c) no provision of this Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Agreement, the Funding Agreements or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests; (e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate; (f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture; (g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Life under the Funding Agreements or any related documents; (h) the Delaware Trustee shall not be under any 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 related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act; (i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Agreement shall look only to the Trust's property for payment or satisfaction thereof; (j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein; (k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document; (l) every provision of this Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6; (m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement from Protective Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Life; (n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents; (o) the Delaware Trustee shall not be required to take any action under this Agreement unless the Delaware Trustee shall have been indemnified by Protective Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; provided, that the Delaware Trustee may not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement and shall be limited to the extent indicated therein; (p) the Delaware Trustee shall not be required to take any action under this Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Agreement or is otherwise contrary to law; (q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee or any other Person; (r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction; (s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust; (t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed; and (u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 8 contracts
Samples: Omnibus Instrument (Protective Life Insurance Co), Omnibus Instrument (Protective Life Insurance Co), Omnibus Instrument (Protective Life Insurance Co)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created by the Trust Agreement and agrees to perform its duties hereunder under the Trust Agreement with respect to the same, but only upon the terms of this the Trust Agreement. No implied covenants or obligations shall be read into this the Trust Agreement. The Delaware Trustee shall not be liable hereunder under the Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, negligence or (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in the Trust Agreement expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Trust Agreement and the Indenture;
(c) no provision of this the Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Trust Agreement, the Funding Agreements Agreement, the Guarantee or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial InterestsInterest;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Trust Agreement or any related document or for the due execution hereof or thereof of the Trust Agreement by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this the Trust Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective LifePrincipal Life or PFG, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Principal Life under the Funding Agreements Agreement or PFG under the Guarantee or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Trust Agreement, or to institute, conduct or defend any litigation under this the Trust Agreement or otherwise or in relation to this the Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in the Trust Agreement in accepting the trusts hereby created by the Delaware Trust Agreement the Trustee acts solely as trustee hereunder under the Trust Agreement and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Trust Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin the Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin the Trust Agreement, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the applicable Expense and Indemnity Agreement from Protective Principal Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Principal Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Trust Agreement, except as expressly required by the terms hereofof the Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Agreement unless the Delaware Trustee shall have been indemnified by Protective Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; provided, that the Delaware Trustee may not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Trust Agreement or is otherwise contrary to law;
(qp) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee or any other Person;
(rq) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or the Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Trust Agreement and as it shall deem to be in the best interest of the relevant Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(sr) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;; and
(ts) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 3 contracts
Samples: Omnibus Instrument (Principal Life Insurance Co), Omnibus Instrument (Principal Life Insurance Co), Omnibus Instrument (Principal Life Insurance Co)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created by the Trust Agreement and agrees to perform its duties hereunder under the Trust Agreement with respect to the same, but only upon the terms of this the Trust Agreement. No implied covenants or obligations shall be read into this the Trust Agreement. The Delaware Trustee shall not be liable hereunder under the Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in the Trust Agreement expressly made by itthe Delaware Trustee. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officersa Responsible Officer, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Administrator, the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Trust Agreement and the Indenture;
(c) no provision of this the Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder under the Trust Agreement if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Trust Agreement, the any Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial InterestsNotes;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Trust Agreement or any related document or for the due execution hereof of the Trust Agreement or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in than the case signature and countersignature of the Delaware Trustee, Trustee on any of the Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall (ii) not have any obligation or liability to perform the obligations of the Trust under this the Trust Agreement or any related document or under any federalFederal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder under the Trust Agreement or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Allstate Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Allstate Life under the any Funding Agreements Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Trust Agreement, or to institute, conduct or defend any litigation under this the Trust Agreement or otherwise or in relation to this the Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for in connection therewith other than for its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided hereinin the Trust Agreement, in accepting the trusts hereby created by the Trust Agreement, the Delaware Trustee acts solely as trustee hereunder under the Trust Agreement and not in its individual capacity, and all persons Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Trust Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Administrator, the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin the Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin the Trust Agreement, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Administrator, the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Administrator's, the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Support Agreement from Protective Allstate Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Trust Agreement, except as expressly required by the terms hereofof the Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial OwnerAdministrator, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this the Trust Agreement unless the Delaware Trustee shall have been indemnified by Protective Lifethe Trust, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any actionin addition, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it performed, as specified in and pursuant to such directionthe Series Instrument; provided, that the Delaware Trustee may shall not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct misconduct, bad faith or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to in the Expense and Indemnity Agreement and shall be limited to the extent indicated thereinTrust Agreement;
(p) the Delaware Trustee shall not be required to take any action under this the Trust Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner Administrator or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial OwnerAdministrator, or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner Administrator or the Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereofof the Trust Agreement, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner Administrator requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Trust Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002.
Appears in 2 contracts
Samples: Trust Agreement (Allstate Life Global Funding), Trust Agreement (Allstate Life Global Funding)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created by the Trust Agreement and agrees to perform its duties hereunder under the Trust Agreement with respect to the same, but only upon the terms of this the Trust Agreement. No implied covenants or obligations shall be read into this the Trust Agreement. The Delaware Trustee shall not be liable hereunder under the Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in the Trust Agreement expressly made by itthe Delaware Trustee. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officersa Responsible Officer, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Administrator, the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Trust Agreement and the Indenture;
(c) no provision of this the Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder under the Trust Agreement if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Trust Agreement, the any Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial InterestsNotes;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Trust Agreement or any related document or for the due execution hereof of the Trust Agreement or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case signature and countersignature of the Delaware Trustee, Trustee on any of the Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall (ii) not have any obligation or liability to perform the obligations of the Trust under this the Trust Agreement or any related document or under any federalFederal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder under the Trust or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Allstate Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Allstate Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Trust Agreement, or to institute, conduct or defend any litigation under this the Trust Agreement or otherwise or in relation to this the Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for in connection therewith other than for its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided hereinin the Trust Agreement, in accepting the trusts hereby created by the Trust Agreement, the Delaware Trustee acts solely as trustee hereunder under the Trust Agreement and not in its individual capacity, and all persons Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Trust Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Administrator, the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin the Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin the Trust Agreement, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Administrator, the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Administrator's, the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Support Agreement from Protective Allstate Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Trust Agreement, except as expressly required by the terms hereofof the Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial OwnerAdministrator, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this the Trust Agreement unless the Delaware Trustee shall have been indemnified by Protective Lifethe Trust, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any actionin addition, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such directionperformed; providedPROVIDED, that THAT the Delaware Trustee may shall not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct misconduct, bad faith or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to in the Expense and Indemnity Agreement and shall be limited to the extent indicated thereinTrust Agreement;
(p) the Delaware Trustee shall not be required to take any action under this the Trust Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner Administrator or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial OwnerAdministrator, or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner Administrator or the Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereofof the Trust Agreement, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner Administrator requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Trust Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee Trusteee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 2 contracts
Samples: Trust Agreement (Allstate Life Global Funding), Trust Agreement (Allstate Life Insurance Co)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this the Agreement. No implied covenants or obligations shall be read into this the Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Agreement and the Indenture;
(c) no provision of this the Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Agreement, the Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Administrative Services Agreement, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this the Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Hartford Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Hartford Life under the Funding Agreements Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Agreement, or to institute, conduct or defend any litigation under this the Agreement or otherwise or in relation to this the Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article ARTICLE 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement Agreements from Protective Hartford Life in satisfaction of any such tax, assessment or other 18 governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Hartford Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Issuance Documents;
(o) the Delaware Trustee shall not be required to take any action under this the Agreement unless the Delaware Trustee shall have been indemnified by Protective Hartford Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Hartford Life as shall be required and, in addition, to cause Protective Hartford Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; providedPROVIDED, that THAT the Delaware Trustee may not be indemnified by Protective Hartford Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; providedPROVIDED, furtherFURTHER, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement Agreements and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this the Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, the Administrator or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner Owner, the Administrator or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002; and
(v) notwithstanding anything xxxxxxxxx xxxxin to the contrary, neither Wilmington Trust Company nor the Delaware Trustee shall 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 consent or approval or authorization or order of or the giving of notice to, or the registration with or the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (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 Wilmington Trust Company; or (iii) subject Wilmington Trust Company 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 Wilmington Trust Company or the Delaware Trustee, as the case may be, contemplated hereby. The Delaware Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of Hartford Life) 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. In the event that said counsel advises the Delaware Trustee that such action will result in such consequences, the Delaware Trustee will appoint an additional trustee pursuant to SECTION 8.05 hereof to proceed with such action.
Appears in 2 contracts
Samples: Trust Agreement (Hartford Life Insurance Co), Trust Agreement (Hartford Life Insurance Co)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this the Agreement. No implied covenants or obligations shall be read into this the Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Agreement and the Indenture;
(c) no provision of this the Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Agreement, the Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Administrative Services Agreement, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this the Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Hartford Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Hartford Life under the Funding Agreements Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Agreement, or to institute, conduct or defend any litigation under this the Agreement or otherwise or in relation to this the Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article ARTICLE 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement Agreements from Protective Hartford Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Hartford Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Issuance Documents;
(o) the Delaware Trustee shall not be required to take any action under this the Agreement unless the Delaware Trustee shall have been indemnified by Protective Hartford Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Hartford Life as shall be required and, in addition, to cause Protective Hartford Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; providedPROVIDED, that THAT the Delaware Trustee may not be indemnified by Protective Hartford Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; providedPROVIDED, furtherFURTHER, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement Agreements and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this the Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, the Administrator or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner Owner, the Administrator or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002; and
(v) notwithstanding anything coxxxxxxx xxxxxx to the contrary, neither Wilmington Trust Company nor the Delaware Trustee shall 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 consent or approval or authorization or order of or the giving of notice to, or the registration with or the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (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 Wilmington Trust Company; or (iii) subject Wilmington Trust Company 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 Wilmington Trust Company or the Delaware Trustee, as the case may be, contemplated hereby. The Delaware Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of Hartford Life) 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. In the event that said counsel advises the Delaware Trustee that such action will result in such consequences, the Delaware Trustee will appoint an additional trustee pursuant to SECTION 8.05 hereof to proceed with such action.
Appears in 1 contract
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this the Agreement. No implied covenants or obligations shall be read into this the Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this the Agreement and the Indenture;
(c) no provision of this the Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this the Agreement, the Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this the Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Administrative Services Agreement, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this the Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Hartford Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Hartford Life under the Funding Agreements Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this the Agreement, or to institute, conduct or defend any litigation under this the Agreement or otherwise or in relation to this the Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this the Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this the Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this the Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article ARTICLE 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement Agreements from Protective Hartford Life in satisfaction of any such tax, assessment or other 18 governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Hartford Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this the Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this the Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Issuance Documents;
(o) the Delaware Trustee shall not be required to take any action under this the Agreement unless the Delaware Trustee shall have been indemnified by Protective Hartford Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Hartford Life as shall be required and, in addition, to cause Protective Hartford Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; providedPROVIDED, that THAT the Delaware Trustee may not be indemnified by Protective Hartford Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; providedPROVIDED, furtherFURTHER, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement Agreements and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this the Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this the Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner Owner, the Administrator or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, the Administrator or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner Owner, the Administrator or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this the Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this the Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this the Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002; and
(v) notwithstanding anything contained herein to the contrary, neither Wilmington Trust Company nor the Delaware Trustee shall 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 consent or approval or authorization or order of or the giving of notice to, or the registration with or the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (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 Wilmington Trust Company; or (iii) subject Wilmington Trust Company 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 Wilmington Trust Company or the Delaware Trustee, as the case may be, contemplated hereby. The Delaware Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of Hartford Life) 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. In the event that said counsel advises the Delaware Trustee that such action will result in such consequences, the Delaware Trustee will appoint an additional trustee pursuant to SECTION 8.05 hereof to proceed with such action.
Appears in 1 contract
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder under this Amended and Restated Trust Agreement with respect to the sameTrust, but only upon the terms of this Amended and Restated Trust Agreement. No implied covenants or obligations shall be read into this Amended and Restated Trust Agreement. The Delaware Trustee shall not be liable hereunder under this Amended and Restated Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in this Amended and Restated Trust Agreement expressly made by itthe Delaware Trustee. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officersa Responsible Officer, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Administrator or the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement Amended and the IndentureRestated Trust Agreement;
(c) no provision of this Amended and Restated Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder under this Amended and Restated Trust Agreement if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Amended and Restated Trust Agreement, the any Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial InterestsFunding Note;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Amended and Restated Trust Agreement or any related document or for the due execution hereof of this Amended and Restated Trust Agreement or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral), other than, in the case signature and countersignature of the Delaware Trustee, Trustee on any of the Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent Administrator under the Indenture, the Notes Funding Note or any related 14 documents or otherwise, and the Delaware Trustee shall (ii) not have any obligation or liability to perform the obligations of the Trust under this Amended and Restated Trust Agreement or any related document or under any federalFederal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Amended and Restated Administrative Services Agreement or the Indenture Trustee under the IndentureAgreement;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Allstate Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Allstate Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Amended and Restated Trust Agreement, or to institute, conduct or defend any litigation under this Amended and Restated Trust Agreement or otherwise or in relation to this Amended and Restated Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Amended and Restated Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for in connection therewith other than for its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided hereinin this Amended and Restated Trust Agreement, in accepting the trusts hereby created by this Amended and Restated Trust Agreement, the Delaware Trustee acts solely as trustee hereunder under this Amended and Restated Trust Agreement and not in its individual capacity, and all persons Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Amended and Restated Trust Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Administrator, the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin this Amended and Restated Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Amended and Restated Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin this Amended and Restated Trust Agreement, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Administrator or the Trust Beneficial Owner or the Indenture TrusteeOwner, (iii) to inspect the Administrator's or the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense Amended and Indemnity Restated Support Agreement from Protective Allstate Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Amended and Restated Trust Agreement, except as expressly required by the terms hereofof this Amended and Restated Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial OwnerAdministrator, and in no event shall the Delaware Trustee have any implied duties or obligations under this Amended and Restated Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement unless the Delaware Trustee shall have been indemnified by Protective Lifethe Trust, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any actionin addition, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such directionperformed; providedPROVIDED, that THAT the Delaware Trustee may shall not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct misconduct, bad faith or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense in this Amended and Indemnity Agreement and shall be limited to the extent indicated thereinRestated Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Amended and Restated Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture TrusteeAdministrator, nor shall the Delaware Trustee have any obligation to furnish 16 information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee Administrator or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture TrusteeAdministrator. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Amended and Restated Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereofof this Amended and Restated Trust Agreement, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner Administrator requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Amended and Restated Trust Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Amended and Restated Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this Agreement. No implied covenants or obligations shall be read into this Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement and the Indenture;
(c) no provision of this Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Agreement, the Funding Agreements or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any 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 related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Agreement shall look only to the Trust's ’s property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's ’s or the Indenture Trustee's ’s books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement from Protective Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Agreement unless the Delaware Trustee shall have been indemnified by Protective Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; provided, that the Delaware Trustee may not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's ’s willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Samples: Omnibus Instrument (Protective Life Secured Trust 2003-1)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder under this Amended and Restated Trust Agreement with respect to the sameTrust, but only upon the terms of this Amended and Restated Trust Agreement. No implied covenants or obligations shall be read into this Amended and Restated Trust Agreement. The Delaware Trustee shall not be liable hereunder under this Amended and Restated Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in this Amended and Restated Trust Agreement expressly made by itthe Delaware Trustee. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officersa Responsible Officer, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Administrator or the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement Amended and the IndentureRestated Trust Agreement;
(c) no provision of this Amended and Restated Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder under this Amended and Restated Trust Agreement if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Amended and Restated Trust Agreement, the any Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial InterestsFunding Note;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Amended and Restated Trust Agreement or any related document or for the due execution hereof of this Amended and Restated Trust Agreement or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral), other than, in the case signature and countersignature of the Delaware Trustee, Trustee on any of the Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent Administrator under the Indenture, the Notes Funding Note or any related documents or otherwise, and the Delaware Trustee shall (ii) not have any obligation or liability to perform the obligations of the Trust under this Amended and Restated Trust Agreement or any related document or under any federalFederal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Amended and Restated Administrative Services Agreement or the Indenture Trustee under the IndentureAgreement;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Allstate Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Allstate Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Amended and Restated Trust Agreement, or to institute, conduct or defend any litigation under this Amended and Restated Trust Agreement or otherwise or in relation to this Amended and Restated Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Amended and Restated Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for in connection therewith other than for its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided hereinin this Amended and Restated Trust Agreement, in accepting the trusts hereby created by this Amended and Restated Trust Agreement, the Delaware Trustee acts solely as trustee hereunder under this Amended and Restated Trust Agreement and not in its individual capacity, and all persons Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Amended and Restated Trust Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Administrator, the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin this Amended and Restated Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Amended and Restated Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin this Amended and Restated Trust Agreement, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Administrator or the Trust Beneficial Owner or the Indenture TrusteeOwner, (iii) to inspect the Administrator's or the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense Amended and Indemnity Restated Support Agreement from Protective Allstate Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Amended and Restated Trust Agreement, except as expressly required by the terms hereofof this Amended and Restated Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial OwnerAdministrator, and in no event shall the Delaware Trustee have any implied duties or obligations under this Amended and Restated Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement unless the Delaware Trustee shall have been indemnified by Protective Lifethe Trust, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any actionin addition, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such directionperformed; providedPROVIDED, that THAT the Delaware Trustee may shall not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct misconduct, bad faith or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense in this Amended and Indemnity Agreement and shall be limited to the extent indicated thereinRestated Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Amended and Restated Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture TrusteeAdministrator, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee Administrator or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture TrusteeAdministrator. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Amended and Restated Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereofof this Amended and Restated Trust Agreement, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner Administrator requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Amended and Restated Trust Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Amended and Restated Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this Agreement. No implied covenants or obligations shall be read into this Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement and the Indenture;
(c) no provision of this Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Agreement, the Funding Agreements or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust under this Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any 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 related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Agreement shall look only to the Trust's ’s property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Trust Beneficial Owner or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Beneficial Owner's ’s or the Indenture Trustee's ’s books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement from Protective Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Agreement unless the Delaware Trustee shall have been indemnified by Protective Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; provided, that the Delaware Trustee may not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's ’s willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Samples: Omnibus Instrument (Protective Life Secured Trust 2003-1)
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder under this Amended and Restated Trust Agreement with respect to the sameGlobal Funding, but only upon the terms of this Amended and Restated Trust Agreement. No implied covenants or obligations shall be read into this Amended and Restated Trust Agreement. The Delaware Trustee shall not be liable hereunder under this Amended and Restated Trust Agreement under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein in this Amended and Restated Trust Agreement expressly made by itthe Delaware Trustee. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officersa Responsible Officer, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Administrator or the Trust Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement Amended and the IndentureRestated Trust Agreement;
(c) no provision of this Amended and Restated Trust Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder under this Amended and Restated Trust Agreement if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Amended and Restated Trust Agreement, the any Funding Agreements Agreement or any related document, including the principal of and interest on the Notes and payments on the Trust Beneficial Interestsany Funding Note;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Amended and Restated Trust Agreement or any related document or for the due execution hereof of this Amended and Restated Trust Agreement or thereof by any party (except by the Delaware Trustee itself) or for ), other than the form, character, genuineness, sufficiency, value or validity signature and countersignature of the Delaware Trustee on any of the Collateral, other than, in the case of the Delaware Trustee, Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or Administrator in respect of any Paying Agent under the Indenture, the Notes Funding Note or any related documents or otherwise, and the Delaware Trustee shall (ii) not have any obligation or liability to perform the obligations of the Trust Global Funding under this Amended and Restated Trust Agreement or any related document or under any federalFederal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Amended and Restated Administrative Services Agreement or the Indenture Trustee under the IndentureAgreement;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Allstate Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Allstate Life under the any Funding Agreements Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Amended and Restated Trust Agreement, or to institute, conduct or defend any litigation under this Amended and Restated Trust Agreement or otherwise or in relation to this Amended and Restated Trust Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Amended and Restated Trust Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for in connection therewith other than for its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided hereinin this Amended and Restated Trust Agreement, in accepting the trusts hereby created by this Amended and Restated Trust Agreement, the Delaware Trustee acts solely as trustee hereunder under this Amended and Restated Trust Agreement and not in its individual capacity, and all persons Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Amended and Restated Trust Agreement shall look only to the TrustGlobal Funding's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the Administrator, the Trust Beneficial Owner or any other Person other than as expressly provided for hereinin this Amended and Restated Trust Agreement;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Amended and Restated Trust Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust Beneficial Owner or as provided hereinin this Amended and Restated Trust Agreement, the Delaware Trustee shall have no duty to: (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Administrator or the Trust Beneficial Owner or the Indenture TrusteeOwner, (iii) to inspect the Administrator's or the Trust Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the TrustGlobal Funding, except to the extent the Delaware Trustee has received funds, on behalf of the TrustGlobal Funding, pursuant to the Expense Amended and Indemnity Restated Support Agreement from Protective Allstate Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust Global Funding or to otherwise take or refrain from taking any action under this Amended and Restated Trust Agreement, except as expressly required by the terms hereofof this Amended and Restated Trust Agreement, or as expressly provided in written instructions from the Trust Beneficial OwnerAdministrator, and in no event shall the Delaware Trustee have any implied duties or obligations under this Amended and Restated Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust Global Funding which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust Global Funding or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement unless the Delaware Trustee shall have been indemnified by Protective LifeGlobal Funding, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to Global Funding shall pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such directionperformed; provided, that the Delaware Trustee may shall not be indemnified by Protective Life, the Trust Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct misconduct, bad faith or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense in this Amended and Indemnity Agreement and shall be limited to the extent indicated thereinRestated Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action under this Amended and Restated Trust Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Amended and Restated Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Beneficial Owner or the Indenture TrusteeAdministrator, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Beneficial Owner or other Person if it has not received such information as it may need from the Trust Beneficial Owner, or the Indenture Trustee Administrator or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Beneficial Owner or Indenture TrusteeAdministrator. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Amended and Restated Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereofof this Amended and Restated Trust Agreement, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Beneficial Owner Administrator requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Amended and Restated Trust Agreement and as it shall deem to be in the best interest of the Trust Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the TrustGlobal Funding;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Amended and Restated Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust Global Funding any filings, certificates, affidavits or other instruments required under the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002.
Appears in 1 contract
Acceptance of Trust and Duties; Limitation on Liability. The Delaware Trustee accepts the trust hereby created and agrees to perform its duties hereunder with respect to the same, but only upon the terms of this Agreement and each Trust Series Agreement. No implied covenants or obligations shall be read into this Agreement or any Trust Series Agreement. The Delaware Trustee shall not be liable hereunder under any circumstances or for any action or failure to act, except for (i) its own willful misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care to disburse funds, or (iii) the inaccuracy of any representation or warranty contained herein expressly made by it. In particular (but without limitation), subject to the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in good faith by any of its responsible officers, unless such error of judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written instructions of the Trust Series Beneficial Owner or the Indenture Trustee or pursuant to the advice of counsel, accountants or other experts selected by it in good faith, so long as such action or omission is consistent with the terms of this Agreement and the Indenture;
(c) no provision of this Agreement or any Trust Series Agreement shall require the Delaware Trustee to expend or risk personal funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Delaware Trustee has 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 Delaware Trustee be liable for indebtedness or other obligations evidenced by or arising under this Agreement, or any Trust Series Agreement, the Funding Agreements or any related document, including the principal of and interest on the Notes and payments on the Trust Series Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the validity or sufficiency of this Agreement or any related document or for the due execution hereof or thereof by any party (except by the Delaware Trustee itself) or for the form, character, genuineness, sufficiency, value or validity of any of the Collateral, other than, in the case of the Delaware Trustee, the execution of any certificate, including any certificate of authentication on the Trust Beneficial Interest Certificates;
(f) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of the Administrator, the Indenture Trustee or any Paying Agent under the Indenture, the Notes or any related documents or otherwise, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of the Trust or any Trust Series under this Agreement, any Trust Series Agreement or any related document or under any federal, state, foreign or local tax or securities law, in each case, that are required to be performed by other Persons, including the Administrator hereunder or under the Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default or misconduct of Protective Life, and the Delaware Trustee shall not have any obligation or liability to perform the obligations of Protective Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement or any Trust Series Agreement, or to institute, conduct or defend any litigation under this Agreement, any Trust Series Agreement or otherwise or in relation to this Agreement, any Trust Series Agreement or any related document, at the request, order or direction of any Person unless such Person has offered to the Delaware Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement, any Trust Series Agreement or in any related document shall not be construed as a duty, and the Delaware Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby created the Delaware Trustee acts solely as trustee hereunder and not in its individual capacity, and all persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Agreement shall look only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of any Collateral, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to the holders of the Trust Series Beneficial Owner Interest Certificates or any other Person other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document;
(l) every provision of this Agreement and the relevant Trust Series Agreement relating to the Delaware Trustee shall be subject to the provisions of this Article 67;
(m) except in accordance with the written instructions furnished by the Trust Series Beneficial Owner or as provided herein, the Delaware Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) to confirm or verify any financial statements of the Trust Series Beneficial Owner or the Indenture Trustee, (iii) to inspect the Trust Series Beneficial Owner's or the Indenture Trustee's books and records at any time or (iv) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Trust, except to the extent the Delaware Trustee has received funds, on behalf of the Trust, pursuant to the Expense and Indemnity Agreement from Protective Life in satisfaction of any such tax, assessment or other governmental charge or any lien or encumbrance of any kind and in accordance with payment or transfer instructions provided by Protective Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust or to otherwise take or refrain from taking any action under this Agreement and the relevant Trust Series Agreement, except as expressly required by the terms hereof, or as expressly provided in written instructions from the Trust Series Beneficial Owner, and in no event shall the Delaware Trustee have any implied duties or obligations under this Agreement or any Trust Series Agreement; the Delaware Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the property of the Trust which result from claims against the Delaware Trustee personally that are not related to the ownership or the administration of the property of the Trust or the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under this Agreement and the relevant Trust Series Agreement unless the Delaware Trustee shall have been indemnified by Protective Life, in manner and form satisfactory to the Delaware Trustee, against any liability, cost or expenses (including counsel fees and disbursements) which may be incurred in connection therewith, and, if the Trust Series Beneficial Owner shall have directed the Delaware Trustee to take any such action or refrain from taking any action, the Trust Series Beneficial Owner agrees to furnish such indemnity from Protective Life as shall be required and, in addition, to cause Protective Life to pay the reasonable compensation of the Delaware Trustee for the services performed or to be performed by it pursuant to such direction; provided, that the Delaware Trustee may not be indemnified by Protective Life, the Trust Series Beneficial Owner or any other Person for the Delaware Trustee's willful misconduct or gross negligence, its failure to use ordinary care to disburse funds or the inaccuracy of its own representations or warranties, made in its individual capacity, contained herein; provided, further, that any indemnity or payment of compensation shall be made pursuant to the Expense and Indemnity Agreement and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under this Agreement and the relevant Trust Series Agreement if the Delaware Trustee shall reasonably determine or shall have been advised by counsel that such action is contrary to the terms of this Agreement and the relevant Trust Series Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in connection with calculations or instructions forwarded to the Delaware Trustee by the Trust Series Beneficial Owner or the Indenture Trustee, nor shall the Delaware Trustee have any obligation to furnish information to any Trust Series Beneficial Owner or other Person if it has not received such information as it may need from the Trust Series Beneficial Owner, or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or omission in good faith in accordance with the advice or direction of the Trust Series Beneficial Owner or Indenture Trustee. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement and the relevant Trust Series Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Delaware Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Series Beneficial Owner requesting instructions as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement and the relevant Trust Series Agreement and as it shall deem to be in the best interest of the relevant Trust Series Beneficial Owner, and the Delaware Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement, indebtedness or other obligation of the Trust;
(t) the Delaware 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 but not limited to natural disaster, war or other circumstances beyond its control, the Delaware Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement and the relevant Trust Series Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be required to execute, deliver or certify on behalf of the Trust or any Trust Series any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
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