Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof: (a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing; (c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel; (d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon; (e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand; (f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and (g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 4 contracts
Samples: Indenture (BBX Capital Corp), Indenture (BBX Capital Corp), Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s 's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s 's or the Issuer’s 's compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s 's Certificates).
Appears in 4 contracts
Samples: Indenture (Bluegreen Corp), Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof7.1:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of a Amortization Event, an Event of Default Default, or a Servicer Event of Default, or after the curing of all Amortization Events, Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesAdministrative Agent; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 3 contracts
Samples: Indenture (Diamond Resorts International, Inc.), Indenture (Diamond Resorts Corp), Indenture (Diamond Resorts Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Amortization Event, an Event of Default Default, or a Servicer Event of Default, or after the curing of all Amortization Events, Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesMajority Facility Investors; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this IndentureIndenture and Servicing Agreement, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 3 contracts
Samples: Third Amended and Restated Indenture and Servicing Agreement (MARRIOTT VACATIONS WORLDWIDE Corp), Indenture and Servicing Agreement (Marriott Vacations Worldwide Corp), Indenture and Servicing Agreement (Marriott Vacations Worldwide Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof6.01:
(ai) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate, Opinion of Counsel, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the any advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such advice or opinion of counsel;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture and the Sale and Servicing Agreement or to institute, conduct or defend by litigation hereunder or in relation hereto at the request, order or direction of the Note Insurer or any of the Noteholders, pursuant to the provisions of this Indenture and the Sale and Servicing Agreement, unless such Noteholders or the Note Insurer, as applicable, shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; except in those cases in which the Indenture Trustee is required by the terms of this Indenture and the Sale and Servicing Agreement to follow the direction of the Note Insurer, the Class 1A Majority Noteholders or the Class 2A Majority Noteholders nothing contained herein shall, however, relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default under this Indenture or the Sale and Servicing Agreement and after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by the Note Insurer, the Class 1A Majority Noteholders representing at least 66-2/3% of or the Adjusted Note Balance of each Class of Notes2A Majority Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this IndentureAgreement, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed repaid by the Servicer upon demanddemand from such Servicer's own funds;
(fvi) The right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture and the Sale and Servicing Agreement shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(vii) The Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Trust created hereby or the powers granted hereunder; and
(viii) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)attorneys.
Appears in 3 contracts
Samples: Indenture (Afc Mortgage Loan Asset Backed Notes Series 2000-1), Indenture (Superior Bank FSB Afc Mort Ln Asset Backed Notes Ser 2000 2), Indenture (Superior Bank FSB Afc Mortgage Ln Asset Bk Notes Ser 1999-3)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 3 contracts
Samples: Indenture (Bluegreen Corp), Indenture (Silverleaf Resorts Inc), Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder before the Indenture Trustee acts or refrains from acting, it may require and shall deem it desirable that a matter be proved or established prior entitled to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon receive an Officer’s Certificate of the Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested believed by it to be genuine, but the Indenture Trustee, in writing so its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to do by Noteholders representing at least 66-2/3% make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Adjusted Note Balance Issuer and the Servicer, personally or by agent or attorney;
(f) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(g) the Indenture Trustee shall not be required to make any initial or periodic examination of each Class any documents or records related to any of Notes; the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(h) whether or not therein expressly so provided, however, that if every provision of this Indenture relating to the payment within a reasonable time conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to this Section;
(i) the Indenture Trustee shall not have any liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Loans; calculations made by the security afforded Servicer whether or not reported to it by the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture;
(j) the rights, immunities, indemnities and protections afforded to the Indenture Trustee may require reasonable indemnity against such cost, expense or liability pursuant to this Article VI shall also be afforded to any entity serving as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandNote Registrar;
(fk) The the Indenture Trustee shall not be responsible or liable in any manner whatsoever, for calculation, determination and/or verification of the allocations of Collections, determinations of monthly interest or the applications of Available Funds pursuant to this Indenture;
(l) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Note Accounts created hereby or in the powers granted hereunder;
(n) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys nominees, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder; provided, that the Indenture Trustee shall remain obligated and be liable to the Issuer and the Noteholders for the execution of their respective trusts and powers and performance of their respective duties hereunder without diminution of such obligations and liability by virtue of the appointment of any such agent, attorney, custodian (which may or nominee, and to the same extent and under the same terms and conditions as if the Indenture Trustee alone were individually executing or performing such obligations; provided, however, that the Indenture Trustee shall not be an Affiliate liable for the execution or performance of any such obligations of the Indenture Trustee), and Trustee by any of the original parties (including any successors or assigns) to the Transaction Documents;
(o) the Indenture Trustee shall not be liable for any acts action it takes or omissions omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith;
(p) in no event shall the Indenture Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such agents, attorneys loss or custodians appointed with due care by it hereunderdamage and regardless of the form of action; and
(gq) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trusteeperson authorized to sign an Officer’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained thereinCertificate, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (person specified as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)so authorized in any such certificate previously delivered and not superseded.
Appears in 2 contracts
Samples: Indenture (Springleaf Holdings, Inc.), Indenture (Springleaf Finance Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof6.01:
(a) The the Indenture Trustee may conclusively rely on and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder before the Indenture Trustee acts or refrains from acting, it may require and shall deem it desirable that a matter be proved or established prior entitled to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon receive an Officer’s Certificate of the Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by agent or attorney;
(f) the Indenture Trustee shall not reasonably assured be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by the security afforded this Indenture;
(g) except as expressly required pursuant to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such costshall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, expense the compliance by the Issuer or any other Person (other than the Indenture Trustee) with its representations and warranties or for any other purpose except as expressly required pursuant to the terms of the Indenture;
(h) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability as a condition of or affording protection to so proceeding. The reasonable expense of every such examination the Indenture Trustee shall be paid subject to the provisions of this Section;
(i) the Indenture Trustee shall not have any liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Loans; calculations made by the Servicer or, if paid by whether or not reported to the Issuer or Indenture Trustee, shall be reimbursed by ; and deposits into or withdrawals from any accounts or funds established pursuant to the Servicer upon demandterms of this Indenture;
(fj) The the rights, immunities, indemnities and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to any entity serving as Note Registrar;
(k) the Indenture Trustee shall not be responsible or liable in any manner whatsoever for calculation, determination and/or verification of the allocations of Collections, determinations of monthly interest or the applications of Available Funds pursuant to this Indenture;
(l) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Note Accounts created hereby or in the powers granted hereunder;
(n) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys nominees, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder; provided, that the Indenture Trustee shall remain obligated and be liable to the Issuer and the Noteholders for the execution of their respective trusts and powers and performance of their respective duties hereunder without diminution of such obligations and liability by virtue of the appointment of any such agent, attorney, custodian (which may or nominee, and to the same extent and under the same terms and conditions as if the Indenture Trustee alone were individually executing or performing such obligations; provided, however, that the Indenture Trustee shall not be an Affiliate liable for the execution or performance of any such obligations of the Indenture Trustee), and Trustee by any of the original parties (including any successors or assigns) to the Transaction Documents;
(o) the Indenture Trustee shall not be liable for any acts action it takes or omissions omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith;
(p) in no event shall the Indenture Trustee be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such agents, attorneys loss or custodians appointed with due care by it hereunderdamage and regardless of the form of action; and
(gq) Delivery of any reports, information and documents to the Indenture Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Neither the Indenture Trustee nor the Issuer Loan Trustee for the benefit of the Issuer shall have any responsibility to the Issuer or the Noteholders to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of independent public accountants by the Issuer or the Servicer; provided that the Indenture Trustee and the Issuer Loan Trustee for the benefit of the Issuer are hereby directed to and, upon receipt of an Issuer Order or written direction from the Depositor, shall execute any acknowledgment or other agreement with the independent accountants required for the Indenture Trustee and the Issuer Loan Trustee for the benefit of the Issuer to receive any of the reports or instructions provided for herein or any the Sale and Servicing Agreement, which acknowledgment or agreement may include, among other Transaction Document things, (i) acknowledgements with respect to the sufficiency of the agreed upon procedures to be performed by the independent accountants by the Issuer, (ii) releases of claims (on behalf of itself and the Holders) and other acknowledgments of limitations of liability in favor of the independent accountants, or (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of independent accountants (including to the Holders). It is understood and agreed that the Indenture Trustee and the Issuer Loan Trustee, for informational purposes only the benefit of the Issuer, will deliver such acknowledgement or other agreement in conclusive reliance on the foregoing direction of the Issuer (unless otherwise expressly statedor Depositor), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which neither the Indenture Trustee is entitled nor the Issuer Loan Trustee for the benefit of the Issuer shall make any inquiry or investigation as to, and shall have no obligation in respect of, the sufficiency, validity or correctness of such procedures. Notwithstanding the foregoing, in no event shall the Indenture Trustee or the Issuer Loan Trustee for the benefit of the Issuer be required to rely exclusively on Officer’s Certificates)execute any agreement in respect of the independent accountants that the Indenture Trustee or the Issuer Loan Trustee for the benefit of the Issuer determines adversely affects it in its individual capacity.
Appears in 2 contracts
Samples: Indenture (OneMain Financial Holdings, Inc.), Indenture (OneMain Financial Holdings, Inc.)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% a majority of the Adjusted Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 2 contracts
Samples: Indenture (Bluegreen Corp), Third Amended and Restated Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% a majority of the Adjusted Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 2 contracts
Samples: Indenture (Bluegreen Corp), Amended and Restated Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates). 64
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation epidemics, pandemics, strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l) In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
Appears in 2 contracts
Samples: Indenture (Bluegreen Vacations Holding Corp), Indenture (Bluegreen Vacations Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper paper, electronic communication or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or parties;
(b) Any request or direction except during the continuance of any Noteholdersan Event of Default, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, accountants and other experts and the advice of such counsel counsel, accountants or any other experts or an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(ed) Prior the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper paper, electronic communication or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in Section 6.15 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees, and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) except as may be required by Section 6.01(b), the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of such agentsthe Servicer, attorneys including acts or custodians appointed omissions in connection with due care the servicing, management or administration of Receivables; calculations made by it hereunderthe Servicer whether or not reported to the Issuer or Indenture Trustee; andand deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture;
(gk) Delivery of any reportsin the event that the Indenture Trustee is also acting as Paying Agent and Note Registrar, information the rights and documents protections afforded to the Indenture Trustee provided for herein or pursuant to this Article VI shall also be afforded to such Paying Agent and Note Registrar;
(l) the right of the Indenture Trustee to perform any other Transaction Document is for informational purposes only (unless otherwise expressly stated)discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee’s receipt Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder;
(n) the Indenture Trustee shall be under no obligation to exercise any of the rights and power vested in it under this Indenture or investigate any matter unless requested by at least holders of 25% of the principal balance of the Notes Outstanding of a Series and indemnity satisfactory to the Indenture Trustee has been provided by such Noteholders. In no event shall the Indenture Trustee be liable for any actions taken at the direction of such Holders:
(o) receipt by the Indenture Trustee of information in reports or financial statements shall not constitute constructive knowledge notice of any information contained therein or determinable from information contained therein, including the Servicer’s or but not limited to the Issuer’s compliance with any of its representations, warranties or the covenants hereunder in the Transaction Documents; and
(as to which p) in no event shall the Indenture Trustee have any liability for a failure to comply with its obligations under the Transaction Documents that is entitled caused by a failure of other Persons to rely exclusively on Officer’s Certificates)comply with their obligations under the Transaction Documents.
Appears in 2 contracts
Samples: Master Indenture, Master Indenture (Atlanticus Holdings Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder before the Indenture Trustee acts or refrains from acting, it may require and shall deem it desirable that a matter be proved or established prior entitled to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon receive an Officer’s Certificate of the Co-Issuers and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested believed by it to be genuine, but the Indenture Trustee, in writing so its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to do by Noteholders representing at least 66-2/3% make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Adjusted Note Balance Co-Issuers and the Servicer, personally or by agent or attorney;
(f) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(g) the Indenture Trustee shall not be required to make any initial or periodic examination of each Class any documents or records related to any of Notes; the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Co-Issuers with its representations and warranties or for any other purpose;
(h) whether or not therein expressly so provided, however, that if every provision of this Indenture relating to the payment within a reasonable time conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to this Section;
(i) the Indenture Trustee shall not have any liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Loans; calculations made by the security afforded Servicer whether or not reported to it by the Co-Issuers or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture, ;
(j) the Indenture Trustee may require reasonable indemnity against such costshall not be responsible or liable in any manner whatsoever, expense for calculation, determination and/or verification of the allocations of Collections, determinations of monthly interest or liability as a condition the applications of Available Funds pursuant to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandthis Indenture;
(fk) The the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(l) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Note Accounts created hereby or in the powers granted hereunder;
(m) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys nominees, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder; provided, that the Indenture Trustee shall remain obligated and be liable to the Co-Issuers and the Noteholders for the execution of its trusts and powers and performance of its duties hereunder without diminution of such obligations and liability by virtue of the appointment of any such agent, attorney, custodian (which may or nominee, and to the same extent and under the same terms and conditions as if the Indenture Trustee alone were individually executing or performing such obligations; provided, however, that no successor Indenture Trustee shall be an Affiliate liable for the execution or performance of any such obligations of the Indenture Trustee), and Trustee by any of the original parties (including any successors or assigns) to the Transaction Documents;
(n) the Indenture Trustee shall not be liable for any acts action it takes or omissions omits to take in good faith which it believes to be authorized or within its rights or powers so long as the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith;
(o) in no event shall the Indenture Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such agents, attorneys loss or custodians appointed with due care by it hereunderdamage and regardless of the form of action; and
(gp) Delivery of any reports, information and documents to the Indenture Trustee provided for herein may request that the Co-Issuers, or the Administrator on behalf of the Co-Issuers, deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trusteeperson authorized to sign an Officer’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained thereinCertificate, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (person specified as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)so authorized in any such certificate previously delivered and not superseded.
Appears in 2 contracts
Samples: Indenture (New Residential Investment Corp.), Indenture (Springleaf Finance Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon (and shall not be required to substantively review) any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted then Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys attorneys, co-trustee or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys attorneys, co-trustee or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 2 contracts
Samples: Indenture (Diamond Resorts International, Inc.), Indenture (Diamond Resorts International, Inc.)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 9.01 hereof:
(ai) The Indenture Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolutionOpinion of Counsel, certificate of a Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the any advice of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with the advice of such counsel;
(eiii) Prior The Indenture Trustee shall be under no obligation to institute, conduct or defend any litigation or proceeding hereunder or in relation hereto at the request, order or direction of the Global Requisite Majority, pursuant to the occurrence provisions of an Event of Default this Indenture, unless the Global Requisite Majority shall have offered to the Indenture Trustee reasonable security or after indemnity against the curing of all Events of Default costs, expenses and liabilities which may have occurredbe incurred therein (including the fees and expenses of its counsel) or thereby (the unsecured indemnity, in form and substance satisfactory to the Indenture Trustee, of a Rated Institutional Noteholder with a net worth of at least $100,000,000 being deemed satisfactory for such purpose);
(iv) The Indenture Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) The Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesGlobal Requisite Majority; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such any cost, expense or liability likely to be incurred in making such investigation as a condition to so proceedingproceeding (the unsecured indemnity, in form and substance satisfactory to the Indenture Trustee, of a Rated Institutional Noteholder with a net worth of at least $100,000,000 being deemed satisfactory for such purpose). The reasonable expense of every any such examination shall be paid paid, pro rata, by the Servicer Noteholders of the applicable Series requesting such examination or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer such Noteholders upon demand;; and
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and attorneys; provided that the Indenture Trustee shall not be liable responsible for any acts misconduct or omissions negligence on the part of such agents, attorneys any agent or custodians attorney appointed with due care by it hereunder; and
without the prior written consent of the Global Requisite Majority (g) Delivery such consent not to be unreasonably withheld). The provisions of any reports, information and documents this Section 9.02 shall be applicable to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of in its representations, warranties or covenants hereunder (capacity as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)under this Indenture.
Appears in 2 contracts
Samples: Indenture (Seacastle Inc.), Indenture (Seacastle Inc.)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or a Servicer Event of Default, so long as a Rapid Amortization Period does not exist, or after the curing of all Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted then Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 2 contracts
Samples: Indenture (Diamond Resorts Parent, LLC), Indenture (Diamond Resorts Parent, LLC)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).63
Appears in 2 contracts
Samples: Indenture (BFC Financial Corp), Indenture (BBX Capital Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely on and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request before the Indenture Trustee acts or direction refrains from acting, it may require and shall be entitled to receive, at the reasonable expense of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate of the Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders or any other Person pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders or such other Person (if direction by such Person is permitted or required under this Indenture or any other Transaction Document) shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to the Indenture Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that, subject to Section 6.01(d), nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the receipt by a Responsible Officer of written notice of the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested believed by it to be genuine, but the Indenture Trustee, in writing so its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to do by Noteholders representing at least 66-2/3% make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Adjusted Note Balance of each Class of NotesIssuer and the Servicer, personally or by agent or attorney; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured (as determined by the Indenture Trustee in its sole discretion) to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable security or indemnity reasonably satisfactory to it against such costthe costs, expense or liability expenses and liabilities which may be incurred thereby as a condition to so proceeding. The ; the reasonable expense of every such examination shall be paid by the Servicer Person making such request, or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer Person making such request upon demand;
(f) the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate or Receivables Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(g) the Indenture Trustee shall not be liable for the acts or omissions of any successor to the Indenture Trustee so long as such acts or omissions were not the result of the negligence, bad faith or willful misconduct of the predecessor Indenture Trustee;
(h) the rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Indenture Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall not have any liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Receivables; calculations made by the Servicer whether or not reported to the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture;
(k) the rights, immunities, indemnities and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to any entity serving as Note Registrar;
(l) the Indenture Trustee shall not be responsible or liable in any manner whatsoever, for calculation, determination and/or verification of the allocations of Collections, determinations of monthly interest or the applications of Available Funds pursuant to this Indenture;
(m) without limiting the generality of this Section, the Indenture Trustee shall have no duty (i) to see to any recording or filing of, or for the preparation, correctness or accuracy of, any financing statement or continuation statement evidencing a security interest in the Receivables, or to see to the maintenance of any such recording or filing or to any rerecording, refiling or redepositing of any thereof, (ii) to confirm or verify the contents of any reports or certificates of the Servicer or the Issuer delivered to the Indenture Trustee pursuant to this Indenture or the other Transaction Documents believed by the Indenture Trustee to be genuine and to have been signed or presented by the proper party or parties or (iii) to inspect the Receivables at any time or ascertain or inquire as to the performance or observance of any of the Issuer’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as custodian of books, records, files and computer records relating to the Receivables;
(n) The Indenture Trustee shall not be responsible to any Person for (i) the value, validity, effectiveness, genuineness, enforceability (other than as to the Indenture Trustee with respect to this Indenture) or sufficiency of this Indenture or any other document referred to or provided for herein or therein or, except as may otherwise be required by law, of the Trust Estate or Receivables Trust Estate `held by the Indenture Trustee hereunder, or (ii) the existence, validity, perfection, priority or enforceability of the Liens in any of the Trust Estate or Receivables Trust Estate, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder (except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Indenture Trustee), the validity of the title to the Trust Estate or Receivables Trust Estate, insuring the Trust Estate or Receivables Trust Estate or the payment of taxes, charges, assessments or Liens upon the Trust Estate or Receivables Trust Estate;
(o) Whenever the Indenture Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Indenture or any other Transaction Document, or is unsure as to the application, intent, interpretation or meaning of any provision of this Indenture or any other Transaction Document, or is, or appears to be, in conflict with any other applicable provision, or is silent or is incomplete as to the course of action to be adopted, the Indenture Trustee may give notice to the Noteholders and the Administrative Agent and request written direction therefrom, as to the course of action to be adopted and, to the extent the Indenture Trustee acts in good faith in accordance with the written direction of the Required Noteholders, the Indenture Trustee shall not be liable on account of such action. If the Indenture Trustee shall not have received appropriate written direction within thirty (30) days of such notice (or within such shorter period of time as reasonably may be specified in such notice), it may, but will be under no duty to, take or refrain from taking such action, not inconsistent with this Indenture, as it deems to be in the best interests of the Holders, and the Indenture Trustee shall not have any liability to the Issuer, the Holders or any other Person for such action or inaction;
(p) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(q) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Note Accounts created hereby or in the powers granted hereunder;
(r) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys nominees, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder; provided, that the Indenture Trustee shall remain obligated and be liable to the Issuer and the Noteholders for the execution of their respective trusts and powers and performance of their respective duties hereunder without diminution of such obligations and liability by virtue of the appointment of any such agent, attorney, custodian (which may or nominee, and to the same extent and under the same terms and conditions as if the Indenture Trustee alone were individually executing or performing such obligations; provided, however, that the Indenture Trustee shall not be an Affiliate liable for the execution or performance of any such obligations of the Indenture Trustee), and Trustee by any of the original parties (including any successors or assigns) to the Transaction Documents;
(s) the Indenture Trustee shall not be liable for any acts action it takes or omissions of such agentsomits to take in good faith which it believes to be authorized or within its rights or powers; provided, attorneys however, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or custodians appointed with due care by it hereunder; andbad faith;
(gt) Delivery of any reports, information and documents to in no event shall the Indenture Trustee be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(u) each of the parties hereto hereby agrees and, as evidenced by its acceptance of any benefits hereunder, any Holder agrees that the Indenture Trustee in any capacity (x) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, financial, investment, securities law or insurance implications and consequences of the consummation, funding and ongoing administration of this Indenture, including, but not limited to, income, gift and estate tax issues, and the initial and ongoing selection and monitoring of financing arrangements and (y) has not made any investigation as to the accuracy of any representations, warranties or other obligations of any Person under any Transaction Document (other than the Indenture Trustee’s representations and warranties set forth in Section 6.12) and shall have no liability in connection therewith, including any liability for herein the enforcement thereof (except for any enforcement obligations of the Indenture Trustee expressly set forth in the Transaction Documents);
(v) without limiting any other provision of this Indenture or any other Transaction Document, the Indenture Trustee shall not be charged with any knowledge held by or imputed to any of the Noteholders, the Issuer, the Servicer or any other Person;
(w) the Indenture Trustee shall not be liable for any delays in performance for causes beyond its control, including, but not limited to, fire, flood, epidemic, unusually severe weather, strike, restriction by civil or military authority in their sovereign or contractual capacities, transportation failure, loss or malfunctions of communications or computer (software and hardware) services, power line or other utility failures or interruptions, inability to obtain labor or any other force majeure event. In the event of any such delay, performance shall be extended for so long as such period of delay;
(x) the Indenture Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(y) nothing in this Indenture or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as be deemed to which obligate the Indenture Trustee to deliver any instruments, documents or any other property referred to herein or therein, unless the same or the components thereof shall have first been received by the Indenture Trustee pursuant to this Indenture; and
(z) the Indenture Trustee shall not be required to take any action hereunder or pursuant to any written instruction, direction or request delivered in accordance with the provisions hereof if the Indenture Trustee shall have been advised by counsel or it shall otherwise have reasonably determined that such action is entitled likely to rely exclusively result in liability on Officer’s Certificatesthe part of the Indenture Trustee (unless the Indenture Trustee has been sufficiently indemnified in its reasonable judgment), is contrary to the terms hereof or is otherwise contrary to law.
Appears in 2 contracts
Samples: Omnibus Amendment (Conns Inc), Indenture (Conns Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof7.1:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of a Amortization Event, an Event of Default Default, or a Servicer Event of Default, or after the curing of all Amortization Events, Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesAgent; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).63
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Note Insurer, the Letter of Credit Bank or by the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer requesting party or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein hereunder or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)that of First Sierra, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s Servicer or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Trust.
Appears in 1 contract
Samples: Indenture (Prudential Securities Secured Financing Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officers' Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) Neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be personally liable for any action taken, suffered or omitted by it under this Indenture or in connection therewith, in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the -46- 52 curing of all Events of Default which that may have occurred, the Indenture 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, consent, entitlement, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Holders of Notes evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandrequesting party;
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunderthe Indenture Trustee hereunder or that of the Originator, the Servicer or the Issuers; and
(gvii) Delivery Whenever in the administration of the provisions of this Indenture or the other Transaction Documents, the Indenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any reportsaction to be taken hereunder, information such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or bad faith on the part of the Indenture Trustee, be deemed to be conclusively proved and documents established by a certificate signed by an Authorized Officer of the Issuers or the Servicer and delivered to the Indenture Trustee provided for herein and such certificate, in the absence of gross negligence or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and bad faith on the part of the Indenture Trustee’s receipt of such , shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as be full warrant to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof; provided, however, nothing contained herein shall delay any action by the Indenture Trustee upon direction of the Majority Holders.
Appears in 1 contract
Samples: Indenture (HPSC Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of (a) Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of 100 any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Holders, pursuant to the provisions of this Agreement, unless such Holders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Indenture Trustee of the obligation, upon the occurrence of a Master Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Master Servicer Event of Default or hereunder and after the curing of all Master Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing the Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights in the REMIC Trust; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenturesuch Noteholders, the Indenture Trustee may require reasonable indemnity against such costexpense, expense or liability from such Noteholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian attorneys; and
(which may be an Affiliate of the Indenture Trustee), and the vii) The Indenture Trustee shall not be personally liable for any acts or omissions loss resulting from the investment of such agents, attorneys or custodians appointed with due care by it hereunder; andfunds held in the Collection Account at the direction of the Master Servicer pursuant to Section 3.12.
(gb) Delivery All rights of action under this Agreement or under any reportsof the Notes, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and enforceable by the Indenture Trustee’s receipt , may be enforced by it without the possession of any of the Securities, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the 101 Indenture Trustee shall be brought in its name for the benefit of all the Holders of such shall not constitute constructive knowledge Securities, subject to the provisions of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(d) the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in Section 6.14 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees, and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Receivables; calculations made by the Servicer whether or not reported to the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture;
(k) in the event that the Indenture Trustee or an Affiliate is also acting as Paying Agent and Note Registrar, the rights, immunities, indemnities and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such agentsPaying Agent and Note Registrar;
(l) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, attorneys and the Indenture Trustee shall not be answerable for other than its negligence or custodians appointed with due care by it willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder; and
(gn) Delivery in order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of any reportsterrorist activities and money-laundering (“Applicable Law”), the Indenture Trustee is required to obtain, verify and record certain information relating to individuals and documents entities which maintain a business relationship with the Indenture Trustee. Accordingly, the Issuer and the Servicer agree to provide to the Indenture Trustee provided upon its request from time to time such identifying information and documentation as may be available for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as party in order to which enable the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)comply with Applicable Laws.
Appears in 1 contract
Samples: Master Indenture (Compucredit Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Note Insurer or the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer requesting party or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein hereunder or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)that of First Sierra, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s Servicer or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Trust.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and without error and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Series Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its reasonable discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Series Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Series Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66more than twenty-2/3% five percent (25%) of the Adjusted Note Balance aggregate Class Principal Balances of each Class all Classes of Outstanding Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require an indemnity satisfactory to the Indenture Trustee, in its reasonable indemnity discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The except as contemplated by Section 11.06, the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Series Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee)custodians, and the Indenture Trustee shall not be liable responsible for any acts misconduct or omissions negligence on the part of any such agent, attorney, or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys attorneys, or custodians appointed shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) the Indenture Trustee shall not be responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee, it is acting as Servicer);
(ix) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with due care by it hereunderany restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among Depositary Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register; and
(gx) Delivery of any reportsthe rights, information protections, immunities and documents indemnities afforded to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the pursuant to this Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as also be afforded to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)under the other Transaction Documents.
Appears in 1 contract
Samples: Indenture (American Tower Corp /Ma/)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;; KL2 2817472.7
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted then Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys attorneys, co-trustee or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys attorneys, co-trustee or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(a) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(c) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of the Note Insurer (or, in the case of a Note Insurer Default, any of the Noteholders), pursuant to the provisions of this Indenture unless the Note Insurer or such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee (the unsecured indemnity agreement of the Note Insurer being satisfactory in all such instances); provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(d) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(e) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Note Insurer (so long as no Note Insurer Default has occurred and is continuing) or by the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceedingproceeding (the unsecured indemnity agreement of the Note Insurer being satisfactory in all such instances). The reasonable expense of every such examination shall be paid by the Servicer or, if paid by requesting party. Nothing in this clause (e) shall derogate from the Indenture Trustee, shall be reimbursed by obligation of the Servicer upon demand;to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein hereunder or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)that of the Originator, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s Servicer or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Trust.
Appears in 1 contract
Samples: Indenture (Prudential Securities Secured Financing Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder 64
(as to which h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation epidemics, pandemics, strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is entitled establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to rely exclusively on Officer’s Certificates)it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l) In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
(m) In no event shall the Indenture Trustee be liable for failure to perform any duties or obligations hereunder if such failure was caused by another Person failing to perform its duties or obligations under the Transaction Documents.
(n) The Indenture Trustee may decline to taking any action at the written direction of the Noteholders in the event that the Indenture Trustee determines in good faith that the action may not lawfully be taken or that the Indenture Trustee believes in good faith that taking such action would subject the Indenture Trustee to personal liability or would be unjustly prejudicial to the non-directing Holders.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or a Servicer Event of Default, so long as a Rapid Amortization Period does not exist, or after the curing of all Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesMajority Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 Except as otherwise provided in SECTION 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer's Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or parties;
(b) Any request or direction except during the continuance of any Noteholdersan Event of Default, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(ed) Prior the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; PROVIDED, HOWEVER, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in SECTION 6.15 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) except as may be required by SECTION 6.01(b), the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of such agentsthe Servicer (except and to the extent the Indenture Trustee is the Servicer), attorneys including acts or custodians appointed omissions in connection with due care the servicing, management or administration of Receivables; calculations made by it hereunderthe Servicer whether or not reported to the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture; and
(gk) Delivery of any reportsin the event that the Indenture Trustee is also acting as Paying Agent and Note Registrar, information the rights and documents protections afforded to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), pursuant to this ARTICLE VI shall also be afforded to such Paying Agent and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Note Registrar.
Appears in 1 contract
Samples: Master Indenture (Compucredit Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officers' Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) Prior The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred(that has not been cured), the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% exercise such of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it rights and powers vested in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by this Indenture and to use the terms same degree of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; skill and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Unicapital Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine genuine, absent manifest error, and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its reasonable discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require an indemnity satisfactory to the Indenture Trustee, in its reasonable indemnity discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, nominees or attorneys custodians, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (which may except as expressly set forth herein);
(vii) the Indenture Trustee shall not be an Affiliate responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee), it is acting as Servicer) or the Manager;
(viii) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s fraud, negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any acts or omissions losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with reasonable instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its request from time to time such agentsidentifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, attorneys or custodians appointed with due care by it hereunderprotections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents; and
(gxiii) Delivery whether in the administration of the provisions of this Indenture or any reports, information and documents to Indenture Supplement hereto the Indenture Trustee provided for herein shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any other Transaction Document is for informational purposes only (unless otherwise expressly stated)action or refraining from taking any action, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled may require a certificate from an Executive Officer of the Issuer. The Indenture Trustee shall not be liable for any action it takes or omits to rely exclusively take in good faith in reliance on Officer’s Certificates)such certificate.
Appears in 1 contract
Samples: Indenture (American Tower Corp /Ma/)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer requesting party or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein hereunder or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)that of First Sierra, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s Servicer or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Trust.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its sole discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3Holders of Notes entitled to more than 25% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable an indemnity satisfactory to the Indenture Trustee, in its sole discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The except as contemplated by Section 11.06, the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any of its duties hereunder hereunder, either directly or by or through agents agents, attorneys, or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee)custodians, and the Indenture Trustee shall not be liable responsible for any acts misconduct or omissions negligence on the part of any such agent, attorney, or custodian appointed by the Indenture Trustee with due care; provided that the use of agents, attorneys attorneys, or custodians appointed with due care shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) the Indenture Trustee shall not be responsible for any act or omission of the Servicer or any act or failure to act taken by the Indenture Trustee at the written direction of the Servicer (unless, in the case of the Indenture Trustee, it hereunderis acting as Servicer); and
(gix) Delivery of any reports, information and documents to the Indenture Trustee provided for herein shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other Transaction Document is for informational purposes only (unless otherwise expressly stated), than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee’s receipt of such Trustee and the Note Registrar shall not constitute constructive knowledge of any information contained therein or determinable from information contained thereinhave no liability for transfers, including transfers made through the Servicer’s book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Issuer’s compliance Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with any of its representations, warranties changes in registration or covenants hereunder (as to which record ownership in the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Note Register.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof6.01:
(ai) The Indenture Trustee may request, and may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors, opinion of counsel or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondapproval, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the any advice of such its counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such advice or Opinion of Counsel;
(eiii) Prior The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the occurrence of discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default or after the curing of all Events of Default which may shall have occurredoccurred and be continuing, the Indenture 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, consent, order, approval, bond or other paper documentor document (provided the same appears regular on its face), unless requested in writing so to do so by Noteholders representing Holders of at least 66-2/3% of the Adjusted Note Balance a majority in Class Principal Amount (or Class Notional Amount) of each Class of Notes; providedPROVIDED, howeverHOWEVER, that that, if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this IndentureAgreement, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability or payment of such estimated expenses as a condition to so proceeding. The reasonable expense of every such examination thereof shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandHolders requesting such investigation;
(fv) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, custodians, or attorneys, which agents, custodians or attorneys shall have any and all of the rights, powers, duties and obligations of the Indenture Trustee conferred on them by such appointment provided that the Indenture Trustee shall continue to be responsible for its duties and obligations hereunder to the extent provided herein, and provided further that the Indenture Trustee shall not be responsible for any misconduct or a custodian negligence on the part of any such agent or attorney appointed with due care by the Indenture Trustee;
(vi) The Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto, in each case at the request, order or direction of any of the Noteholders pursuant to the provisions of this Agreement, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be an Affiliate incurred therein or thereby;
(vii) The right of the Indenture Trustee)Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Indenture Trustee shall not be liable answerable for any acts other than its negligence or omissions willful misconduct in the performance of such agents, attorneys or custodians appointed with due care by it hereunderact; and
(gviii) Delivery of any reports, information and documents to the The Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge be required to give any bond or surety in respect of any information contained therein or determinable from information contained therein, including the Servicer’s execution of the Trust Estate created hereby or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)powers granted hereunder.
Appears in 1 contract
Samples: Sale and Collection Agreement (Aegis Asset Backed Securities Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Aggregate Outstanding Note Balance of each Class of NotesBalance; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.02:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and without manifest error and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Series Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the occurrence of an Event of Default Indenture Trustee security or after indemnity reasonably satisfactory to the curing of all Events of Default Indenture Trustee against the costs, expenses and liabilities which may be incurred therein or thereby; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay allocable overhead, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have occurredreasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Series Supplement;
(v) the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3more than 25.0% of the Adjusted Note Balance aggregate Class Principal Balances of each Class all Classes of Outstanding Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable an indemnity reasonably satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Series Supplement and may perform any of its duties hereunder hereunder, either directly or by or through agents agents, attorneys, or attorneys custodians, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any such agent, attorney, or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys, or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (which may except as expressly set forth herein);
(viii) the Indenture Trustee shall not be an Affiliate responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee, it is acting as Servicer), the Issuer or any other party to the Transaction Documents and may assume compliance by such parties with their obligations under this Indenture or any related agreements, unless a Responsible Officer of the Indenture Trustee shall have received written notice to the contrary at the Corporate Trust Office of the Indenture Trustee;
(ix) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among Depositary Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(x) the Indenture Trustee shall not be liable for any losses on investments;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its reasonable request from time to time such identifying information and documentation as may be reasonably available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) whenever in the administration of the provisions of this Indenture or any Series Supplement the Indenture Trustee shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any action or refraining from taking any action, the Indenture Trustee may require an Officer’s Certificate or an Opinion of Counsel from the party requesting that the Indenture Trustee act or refrain from acting in form and substance acceptable to the Indenture Trustee, the costs of which (including the Indenture Trustee’s reasonable attorney’s fees and expenses) shall be paid by the party requesting that the Indenture Trustee act or refrain from acting. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(xiii) in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations under any Transaction Document because of circumstances beyond the Indenture Trustee’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or omissions undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by the Transaction Documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Indenture Trustee’s control whether or not of the same class or kind as specified above; provided that upon the occurrence of any of the foregoing events, the Indenture Trustee shall use commercially reasonable efforts to resume performance of its obligations as soon as practicable under the circumstances, and, other than if Knowledge of such agentscircumstances is otherwise available to the Issuer and the Servicer, attorneys the Indenture Trustee shall provide the Issuer and the Servicer notice of any failure or custodians appointed with due care delay by it hereunderas a result of any of the foregoing events as soon as practicable under the circumstances;
(xiv) the Indenture Trustee shall not be liable for failing to comply with its obligations under any Transaction Document in so far as the performance of such obligations is dependent upon the timely receipt of instructions and/or other information from any other Person which are not received or not received by the time required or contain errors or are otherwise incomplete or deficient;
(xv) the Indenture Trustee shall be fully justified in failing or refusing to take any action under any Transaction Document if such action (A) would be contrary to applicable law or any Transaction Document or (B) is not provided for in the Transaction Documents; and
(gxvi) Delivery Knowledge of any reports, information the Indenture Trustee shall not be attributed or imputed to Wilmington’s other roles in the transaction and documents knowledge of the Paying Agent or the Note Registrar shall not be attributed or imputed to each other or to the Indenture Trustee provided for herein (other than those where the roles are performed by the same group or division within Wilmington or otherwise share the same Responsible Officers), or any Affiliate, line of business, or other Transaction Document is for informational purposes only division of Wilmington (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificatesvice versa).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 Except as otherwise provided in SECTION 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer's Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or parties;
(b) Any request or direction except during the continuance of any Noteholdersan Event of Default, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(ed) Prior the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; PROVIDED, HOWEVER, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in SECTION 6.15 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) except as may be required by SECTION 6.01(B), the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of such agentsthe Servicer (except and to the extent the Indenture Trustee is the Servicer), attorneys including acts or custodians appointed omissions in connection with due care the servicing, management or administration of Receivables; calculations made by it hereunderthe Servicer whether or not reported to the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture; and
(gk) Delivery of any reportsin the event that the Indenture Trustee is also acting as Paying Agent and Note Registrar, information the rights and documents protections afforded to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), pursuant to this ARTICLE VI shall also be afforded to such Paying Agent and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Note Registrar.
Appears in 1 contract
Samples: Master Indenture (Compucredit Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(a) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(c) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of the Note Insurer (or, in the case of a Note Insurer Default, any of the Noteholders), pursuant to the provisions of this Indenture unless the Note Insurer or such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee (the unsecured indemnity agreement of the Note Insurer being satisfactory in all such instances); provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(d) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(e) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Note Insurer or by the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable requir indemnity satisfactory to it against such cost, expense or liability as a condition to so proceedingproceeding (the unsecured indemnity agreement of the Note Insurer being satisfactory in all such instances). The reasonable expense of every such examination shall be paid by the Servicer or, if paid by requesting party. Nothing in this clause (e) shall derogate from the Indenture Trustee, shall be reimbursed by obligation of the Servicer upon demand;to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein hereunder or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)that of the Originators, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s Servicer or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Trust.
Appears in 1 contract
Samples: Indenture (American Business Financial Services Inc /De/)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof6.01:
(a) The the Indenture Trustee may conclusively rely on and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder before the Indenture Trustee acts or refrains from acting, it may require and shall deem it desirable that a matter be proved or established prior entitled to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon receive an Officer’s Certificate of the Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Administrative Agent or the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by agent or attorney;
(f) the Indenture Trustee shall not reasonably assured be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by the security afforded this Indenture;
(g) except as expressly required pursuant to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such costshall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, expense the compliance by the Issuer or any other Person (other than the Indenture Trustee) with its representations and warranties or for any other purpose except as expressly required pursuant to the terms of the Indenture;
(h) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability as a condition of or affording protection to so proceeding. The reasonable expense of every such examination the Indenture Trustee shall be paid subject to the provisions of this Section;
(i) the Indenture Trustee shall not have any liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Loans; calculations made by the Servicer or, if paid by whether or not reported to the Issuer or Indenture Trustee, shall be reimbursed by ; and deposits into or withdrawals from any accounts or funds established pursuant to the Servicer upon demandterms of this Indenture;
(fj) The the rights, immunities, indemnities and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to any entity serving as Note Registrar;
(k) the Indenture Trustee shall not be responsible or liable in any manner whatsoever for calculation, determination and/or verification of the allocations of Collections, determinations of monthly interest or the applications of Available Funds pursuant to this Indenture;
(l) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Note Accounts created hereby or in the powers granted hereunder;
(n) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys nominees, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder; provided, that the Indenture Trustee shall remain obligated and be liable to the Issuer and the Noteholders for the execution of their respective trusts and powers and performance of their respective duties hereunder without diminution of such obligations and liability by virtue of the appointment of any such agent, attorney, custodian (which may or nominee, and to the same extent and under the same terms and conditions as if the Indenture Trustee alone were individually executing or performing such obligations; provided, however, that the Indenture Trustee shall not be an Affiliate liable for the execution or performance of any such obligations of the Indenture Trustee), and Trustee by any of the original parties (including any successors or assigns) to the Transaction Documents;
(o) the Indenture Trustee shall not be liable for any acts action it takes or omissions omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith;
(p) in no event shall the Indenture Trustee be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such agents, attorneys loss or custodians appointed with due care by it hereunderdamage and regardless of the form of action; and
(gq) Delivery of any reports, information and documents to the Indenture Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Neither the Indenture Trustee nor the Issuer Loan Trustee for the benefit of the Issuer shall have any responsibility to the Issuer or the Noteholders to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of independent public accountants by the Issuer or the Servicer; provided that the Indenture Trustee and the Issuer Loan Trustee for the benefit of the Issuer are hereby directed to and, upon receipt of an Issuer Order or written direction from the Depositor, shall execute any acknowledgment or other agreement with the independent accountants required for the Indenture Trustee and the Issuer Loan Trustee for the benefit of the Issuer to receive any of the reports or instructions provided for herein or any the Sale and Servicing Agreement, which acknowledgment or agreement may include, among other Transaction Document things, (i) acknowledgements with respect to the sufficiency of the agreed upon procedures to be performed by the independent accountants by the Issuer, (ii) releases of claims (on behalf of itself and the Holders) and other acknowledgments of limitations of liability in favor of the independent accountants, or (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of independent accountants (including to the Holders). It is understood and agreed that the Indenture Trustee and the Issuer Loan Trustee, for informational purposes only the benefit of the Issuer, will deliver such acknowledgement or other agreement in conclusive reliance on the foregoing direction of the Issuer (unless otherwise expressly statedor Depositor), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which neither the Indenture Trustee is entitled nor the Issuer Loan Trustee for the benefit of the Issuer shall make any inquiry or investigation as to, and shall have no obligation in respect of, the sufficiency, validity or correctness of such procedures. Notwithstanding the foregoing, in no event shall the Indenture Trustee or the Issuer Loan Trustee for the benefit of the Issuer be required to rely exclusively on Officer’s Certificates)execute any agreement in respect of the independent accountants that the Indenture Trustee or the Issuer Loan Trustee for the benefit of the Issuer determines adversely affects it in its individual capacity.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of (a) Except as otherwise provided in Section 7.1 hereof6.1:
(ai) The Indenture Trustee may request and rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the manner of obtaining consents and evidencing the authorization of the execution thereof shall be subject to such reasonable regulations as the Indenture Trustee may prescribe;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, and the any advice of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such advice or Opinion of Counsel;
(eiii) Prior The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the occurrence of an Event of Default discretion or after the curing of all Events of Default which may have occurred, rights or powers conferred upon it by this Indenture;
(iv) the Indenture Trustee shall not be bound accountable, shall have no liability and makes no representation as to make any investigation into the facts acts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% omissions hereunder of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable Servicer until such time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, as the Indenture Trustee may require reasonable indemnity against such cost, expense be required to act as Servicer and thereupon only for the acts or liability as a condition to so proceeding. The reasonable expense omissions of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandTrustee as successor Servicer;
(fv) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Indenture Trustee shall not be responsible for any misconduct or a custodian negligence on the part of such agent or attorney appointed by any other party to this Indenture, including without limitation, the appointment of any custodian;
(vi) the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by the Indenture, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity satisfactory to the Indenture Trustee against the costs, expenses and liabilities which may be an Affiliate incurred therein or herein (which in the case of Noteholders representing in the aggregate not less than 66-2/3% of the Outstanding Amount of the Notes will be deemed satisfied by a letter agreement with respect to such costs from such Noteholders);
(vii) the right of the Indenture Trustee)Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be liable answerable for any acts or omissions other than its negligence of willful misconduct in the performance of such agents, attorneys or custodians appointed with due care by it hereunderact; and
(gviii) Delivery of any reports, information and documents to the The Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge be required to give any bond or surety in respect of any information contained therein or determinable from information contained therein, including the Servicer’s execution of the Trust Estate created hereby or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)powers granted hereunder.
Appears in 1 contract
Samples: Indenture (Wells Fargo Student Loans Receivables I LLC)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or parties;
(b) Any request or direction except during the continuance of any Noteholdersan Event of Default, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(ed) Prior the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in Section 6.15 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees, and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) except as may be required by Section 6.01(b), the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of the Servicer (except and to the extent the Indenture Trustee is the Servicer), including acts or omissions in connection with the servicing, management or administration of Receivables; calculations made by the Servicer (except to the extent the Indenture Trustee is the Servicer) whether or not reported to the Issuer or Indenture Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture made by any Person other than the Indenture Trustee;
(k) in the event that the Indenture Trustee is also acting as Paying Agent and Note Registrar, the rights and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such agentsPaying Agent and Note Registrar;
(l) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, attorneys and the Indenture Trustee shall not be answerable for other than its negligence or custodians appointed with due care by it hereunderwillful misconduct in the performance of such act; and
(gm) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge be required to give any bond or surety in respect of any information contained therein or determinable from information contained therein, including the Servicer’s execution of the trust created hereby or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)powers granted hereunder.
Appears in 1 contract
Samples: Master Indenture (Compucredit Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders Holders representing at least 66-2/3% of the Adjusted Outstanding Note Balance of each Class of NotesBalance; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and without error and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its reasonable discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require an indemnity satisfactory to the Indenture Trustee, in its reasonable indemnity discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The except as contemplated by Section 11.06, the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee)custodians, and the Indenture Trustee shall not be liable responsible for any acts misconduct or omissions negligence on the part of any such agent, attorney, or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys attorneys, or custodians appointed with due care by shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) the Indenture Trustee shall not be responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee, it hereunderis acting as Servicer); and
(gix) Delivery the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any reportsNote or any interest therein, information other than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and documents to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register.
(x) the rights, protections, immunities and indemnities afforded to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the pursuant to this Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as also be afforded to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)under the other Transaction Documents.
Appears in 1 contract
Samples: Indenture (American Tower Corp /Ma/)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants, and other experts, and the advice of such counsel counsel, accountants, and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesRequired Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, epidemics, pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation. 49
(l) U.S. Bank National Association serving as securities intermediary shall have all of the rights, protections and indemnities that the Indenture Trustee has under this Indenture.
(m) The Indenture Trustee shall be under no obligation to (i) monitor, determine or verify the unavailability or cessation of any applicable interest rate benchmark, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any transition event or replacement date with respect to any interest rate benchmark, (ii) select, determine or designate any benchmark replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, (iii) select, determine or designate any benchmark replacement adjustment, or other modifier to any replacement or successor index, or (iv) determine whether or what benchmark replacement conforming changes are necessary or advisable, if any, in connection with any of the foregoing. The Indenture Trustee shall not be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Agreement as a result of the unavailability of any interest rate benchmark and absence of a designated replacement benchmark, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, including without limitation the Issuer, in providing any direction, instruction, notice or information required or contemplated by the terms of this Indenture and reasonably required for the performance of such duties.
(n) The Issuer hereby represents and warrants to the Indenture Trustee that, with respect to Timeshare Loan, such Timeshare Loan generates interest only at a fixed rate, calculated without reference to any benchmark or other floating rate index, and will not convert to a variable or floating rate.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;50
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants, and other experts, and the advice of such counsel counsel, accountants, and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesRequired Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages. 51
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Note Insurer or the Holders of Notes of any Class evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notessuch Class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).of
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine genuine, absent manifest error, and to have been signed or presented by the proper party or partiesparties with no duty to confirm, verify or otherwise review and with no liability therefor;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Base Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge which has not been waived or after cured, to exercise such of the curing rights and powers vested in it by this Base Indenture or any Indenture Supplement, and to use the same degree of all Events care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of Default which may have occurredhis own affairs;
(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Base Indenture on any Indenture Supplement;
(v) the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Base Indenture, the Indenture Trustee may require reasonable an indemnity reasonably satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Base Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, nominees or attorneys or a custodian (which may be an Affiliate of custodians, and the Indenture TrusteeTrustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein), ;
(vii) the Indenture Trustee shall not be responsible for any act or omission of any other party to the Transaction Documents or any related document (or any agent thereof) and the Indenture Trustee shall not be liable for any acts action or omissions inaction of any other party to the Transaction Documents or any related document (or agent thereof) and may assume compliance by such agentsparties with their obligations under the Transaction Documents or any related document, attorneys or custodians appointed with due care by it hereunder; andunless a Responsible Officer of the Indenture Trustee shall have received written notice to the contrary at the Corporate Trust Office of the Indenture Trustee;
(gviii) Delivery the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Base Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Base Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Base Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s fraud, negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its reasonable request from time to time such identifying information and documentation as may be reasonably available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, protections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Base Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents;
(xiii) whenever in the administration of the provisions of this Base Indenture or any Indenture Supplement hereto the Indenture Trustee shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any action or refraining from taking any action, the Indenture Trustee may require a certificate from an Executive Officer of the Issuer or an Opinion of Counsel from the party requesting that the Indenture Trustee act or refrain from acting. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or Opinion of Counsel;
(xiv) in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations under this Base Indenture or any related documents because of circumstances beyond the Indenture Trustee’s control, including a failure, termination, or suspension of, or limitations or restrictions in respect of post-payable adjustments through, a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), epidemics, pandemics, civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Base Indenture or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Indenture Trustee’s control whether or not of the same class or kind as specified in this Section 11.02(xiv); it being understood that the Indenture Trustee shall use commercially reasonable efforts to resume performance of its obligations hereunder as soon as practicable under the circumstances;
(xv) the Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties, or the exercise of any of its rights or powers;
(xvi) delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such reports and any publicly available information, shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, (x) other than written notice or directions to the Indenture Trustee expressly provided for in this Base Indenture or any other Transaction Document, or (y) unless the Indenture Trustee shall have an explicit duty to review such content;
(xvii) knowledge of the Indenture Trustee shall not be attributed or imputed to Citibank, N.A.’s other roles in the transaction and knowledge of the Paying Agent, Note Registrar shall not be attributed or imputed to each other or to the Indenture Trustee (other than those where the roles are performed by the same group or division within Citibank, N.A. or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Citibank, N.A. (and vice versa);
(xviii) notwithstanding anything to the contrary in the Indenture, the Indenture Trustee shall not be required to take any action that is not in accordance with applicable law;
(xix) the Indenture Trustee shall have no liability or obligation with respect to the applicability (or otherwise) of any risk retention rules;
(xx) the permissive rights of the Indenture Trustee to take or refrain from taking any action enumerated in this Base Indenture or any other Transaction Document shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its own gross negligence or willful misconduct in the performance or omission of such act as finally determined in a non-appealable decision by a court of competent jurisdiction in the State of New York;
(xxi) the parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Indenture Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties hereto undertake to provide the Indenture Trustee with such information as it may request in order for the Indenture Trustee to satisfy the requirements of the USA Patriot Act, including but not limited to the Servicername, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided;
(xxii) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder;
(xxiii) the Indenture Trustee may request written direction from any applicable party any time the Indenture or any other Transaction Document provides that the Indenture Trustee may be directed to act;
(xxiv) any request or direction of the Issuer or the Manager mentioned in the Indenture or any other Transaction Document shall be sufficiently evidenced by an Issuer Order;
(xxv) whenever in the administration of this Bank Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee may rely upon an Officer’s Certificate of the Issuer or the Manager and shall incur no liability for its reliance thereon;
(xxvi) the Indenture Trustee shall not be responsible for the accuracy of the books or records of, or for any acts or omissions of, DTC, any transfer agent (other than the Indenture Trustee itself acting in that capacity), any calculation agent (other than the Indenture Trustee itself acting in that capacity), or any agent appointed by it with due care or any Paying Agent (other than the Indenture Trustee itself acting in that capacity);
(xxvii) the Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Indenture Trustee’s economic self-interest for (A) servicing as an investment advisor, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (B) using Affiliates to effect transactions in certain Permitted Investments and (C) effecting transactions in certain Permitted Investments. The Indenture Trustee does not guarantee the performance of any Permitted Investments;
(xxviii) the Indenture Trustee shall have no obligation to invest and reinvest any cash held in the absence of timely and specific written investment direction from the Manager or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which . In no event shall the Indenture Trustee is entitled be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to rely exclusively its stated maturity or the failure of the Manager or the Issuer to provide timely written investment direction; and
(xxix) for any purpose of the Indenture or any other Transaction Document the Indenture Trustee may conclusively assume without incurring any liability therefor that no Notes are held by any of the Obligors or Guarantor, any other obligator on Officer’s Certificates)the Notes, the Manager or any Affiliate of them unless a Responsible Officer of the Indenture Trustee has received written notice at the applicable Corporate Trust Office that any Notes are so held by any of the Obligors or Guarantor or any other obligator upon the Notes, the Manager or any Affiliate of them, as applicable.
Appears in 1 contract
Samples: Base Indenture (Tucows Inc /Pa/)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;62
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (BFC Financial Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;; 61
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (BFC Financial Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof7.1:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of a Trigger Event, an Event of Default Default, or a Servicer Event of Default, or after the curing of all Trigger Events, Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted Outstanding Note Balance of each Class of NotesNotes then Outstanding; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (Sunterra Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine genuine, absent manifest error, and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its sole discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable an indemnity satisfactory to the Indenture Trustee, in its sole discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, nominees or attorneys custodians, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (which may except as expressly set forth herein);
(vii) the Indenture Trustee shall not be an Affiliate responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee), it is acting as Servicer) or the Manager;
(viii) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s fraud, negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any acts or omissions losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with reasonable instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its request from time to time such agentsidentifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, attorneys or custodians appointed with due care by it hereunderprotections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents; and
(gxiii) Delivery whenever in the administration of the provisions of this Indenture or any reports, information and documents to Indenture Supplement hereto the Indenture Trustee provided for herein shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any other Transaction Document is for informational purposes only (unless otherwise expressly stated)action or refraining from taking any action, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled may require a certificate from an Executive Officer of the Issuer. The Indenture Trustee shall not be liable for any action it takes or omits to rely exclusively take in good faith in reliance on Officer’s Certificates)such certificate.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) a. The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) b. Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) c. Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion of Counsel;
(d) d. The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) e. Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders Holders representing at least 66-2/3% of the Adjusted Outstanding Note Balance of each the most senior Class of NotesNotes then Outstanding; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) f. The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) g. Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s 's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s 's or the Issuer’s 's compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s 's Certificates).
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants, and other experts, and the advice of such counsel counsel, accountants, and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesRequired Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable 51 expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants, and other experts, and the advice of such counsel counsel, accountants, and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesRequired Noteholders; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its 51 representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
Appears in 1 contract
Samples: Omnibus Amendment (BBX Capital Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or a Servicer Event of Default, so long as a Rapid Amortization Period does not exist, or after the curing of all Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted then Outstanding Note Balance of each Class of NotesBalance; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Diamond Resorts Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesNotes then Outstanding; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) a. The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) b. Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) c. Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion of Counsel;
(d) d. The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) e. Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Outstanding Note Balance of the Class A Notes and 66-2/3% of the Adjusted Note Balance of the Class B Notes, in each case, if such Class of NotesNotes is then Outstanding; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) f. The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) g. Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s 's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s 's or the Issuer’s 's compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s 's Certificates).
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or parties;
(b) Any request or direction except during the continuance of any Noteholdersan Event of Default, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever whenever in the performance administration of its duties hereunder this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein is specifically prescribedprescribed herein) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counselthe Issuer;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, accountants and other experts and the advice of such counsel counsel, accountants or any other experts or an Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(ed) Prior the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested in writing so to do believed by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely it to be incurred by it in the making of such investigation isgenuine, in the reasonable opinion of but the Indenture Trustee, not reasonably assured to in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee by the security afforded shall determine to make such further inquiry or investigation, it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandagent or attorney;
(f) The except as provided in Section 6.15 hereof, the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, attorneys, custodians or attorneys or a custodian (which may be an Affiliate of nominees, and the Indenture Trustee)Trustee shall not be responsible for any misconduct or negligence on the part of any agent, and attorney, custodians or nominees appointed with due care by it hereunder;
(g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon the Indenture Trustee by this Indenture;
(h) except as may be required by Section 6.01(b), the Indenture Trustee shall not be required to make any initial or periodic examination of any documents or records related to any of the Trust Estate for the purpose of establishing the presence or absence of defects, the compliance by the Issuer with its representations and warranties or for any other purpose;
(i) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section;
(j) the Indenture Trustee shall have no liability with respect to the acts or omissions of such agentsthe Servicer, attorneys including acts or custodians appointed omissions in connection with due care the servicing, management or administration of Receivables; calculations made by it hereunderthe Servicer whether or not reported to the Issuer or Indenture Trustee; andand deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Indenture;
(gk) Delivery of any reportsin the event that the Indenture Trustee is also acting as Paying Agent and Note Registrar, information the rights and documents protections afforded to the Indenture Trustee provided for herein or pursuant to this Article VI shall also be afforded to such Paying Agent and Note Registrar;
(l) the right of the Indenture Trustee to perform any other Transaction Document is for informational purposes only (unless otherwise expressly stated)discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee’s receipt Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(m) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder;
(n) the Indenture Trustee shall be under no obligation to exercise any of the rights and power vested in it under this Indenture or investigate any matter unless requested by at least holders of 25% of the principal balance of the Notes Outstanding of a Series and indemnity satisfactory to the Indenture Trustee has been provided by such Noteholders. In no event shall the Indenture Trustee be liable for any actions taken at the direction of such Holders:
(o) receipt by the Indenture Trustee of information in reports or financial statements shall not constitute constructive knowledge notice of any information contained therein or determinable from information contained therein, including the Servicer’s or but not limited to the Issuer’s compliance with any of its representations, warranties or the covenants hereunder in the Transaction Documents; and
(as to which p) in no event shall the Indenture Trustee have any liability for a failure to comply with its obligations under the Transaction Documents that is entitled caused by a failure of other Persons to rely exclusively on Officer’s Certificates)comply with their obligations under the Transaction Documents.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s 's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s 's or the Issuer’s 's compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s 's Certificates).
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to 63 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l) In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
Appears in 1 contract
Samples: Indenture (Bluegreen Vacations Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s 's Certificate or an Opinion opinion of Counselcounsel;
(d) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% a majority of the Adjusted Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s 's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s 's or the Issuer’s 's compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s 's Certificates).
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine and without error and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its reasonable discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require an indemnity satisfactory to the Indenture Trustee, in its reasonable indemnity discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The except as contemplated by Section 11.06, the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee)custodians, and the Indenture Trustee shall not be liable responsible for any acts misconduct or omissions negligence on the part of any such agent, attorney, or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys attorneys, or custodians appointed with due care by shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) the Indenture Trustee shall not be responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee, it hereunderis acting as Servicer); and
(gix) Delivery of any reports, information and documents to the Indenture Trustee provided for herein shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other Transaction Document is for informational purposes only (unless otherwise expressly stated), than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee’s receipt of such Trustee and the Note Registrar shall not constitute constructive knowledge of any information contained therein or determinable from information contained thereinhave no liability for transfers, including transfers made through the Servicer’s book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Issuer’s compliance Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with any of its representations, warranties changes in registration or covenants hereunder (as to which record ownership in the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)Note Register.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine genuine, absent manifest error, and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Base Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge which has not been waived or after cured, to exercise such of the curing rights and powers vested in it by this Base Indenture or any Indenture Supplement, and to use the same degree of all Events care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of Default which may have occurredhis own affairs;
(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Base Indenture on any Indenture Supplement;
(v) the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Base Indenture, the Indenture Trustee may require reasonable an indemnity reasonably satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Base Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, nominees or attorneys or a custodian (which may be an Affiliate of custodians, and the Indenture TrusteeTrustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein), ;
(vii) the Indenture Trustee shall not be responsible for any act or omission of any other party to the Transaction Documents or any related document (or any agent thereof) and the Indenture Trustee shall not be liable for any acts action or omissions inaction of any other party to the Transaction Documents or any related document (or agent thereof) and may assume compliance by such agentsparties with their obligations under the Transaction Documents or any related document, attorneys or custodians appointed with due care by it hereunder; andunless a Responsible Officer of the Indenture Trustee shall have received written notice to the contrary at the Corporate Trust Office of the Indenture Trustee;
(gviii) Delivery the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Base Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Base Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Base Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its reasonable request from time to time such identifying information and documentation as may be reasonably available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, protections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Base Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents;
(xiii) whenever in the administration of the provisions of this Base Indenture or any Indenture Supplement hereto the Indenture Trustee shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any action or refraining from taking any action, the Indenture Trustee may require a certificate from an Executive Officer of the Issuer or an Opinion of Counsel from the party requesting that the Indenture Trustee act or refrain from acting. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or Opinion of Counsel;
(xiv) in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations under this Base Indenture or any related documents because of circumstances beyond the Indenture Trustee’s control, including a failure, termination, or suspension of, or limitations or restrictions in respect of post-payable adjustments through, a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Base Indenture or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Indenture Trustee’s control whether or not of the same class or kind as specified in this Section 11.02(xiv); it being understood that the Indenture Trustee shall use commercially reasonable efforts to resume performance of its obligations hereunder as soon as practicable under the circumstances;
(xv) the Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties, or the exercise of any of its rights or powers;
(xvi) delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such reports and any publicly available information, shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Servicer’s (x) other than written notice or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as directions to which the Indenture Trustee expressly provided for in this Base Indenture or any other Transaction Document, or (y) unless the Indenture Trustee shall have an explicit duty to review such content;
(xvii) knowledge of the Indenture Trustee shall not be attributed or imputed to Wilmington Trust, National Association’s other roles in the transaction and knowledge of the Paying Agent, Note Registrar or Verification Agent shall not be attributed or imputed to each other or to the Indenture Trustee (other than those where the roles are performed by the same group or division within Wilmington Trust, National Association or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Wilmington Trust, National Association (and vice versa);
(xviii) notwithstanding anything to the contrary in the Indenture, the Indenture Trustee shall not be required to take any action that is entitled not in accordance with applicable law; and
(xix) the Indenture Trustee shall have no liability or obligation with respect to rely exclusively on Officer’s Certificates)the applicability (or otherwise) of any risk retention rules.
Appears in 1 contract
Samples: Base Indenture (Cogent Communications Holdings, Inc.)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;; KL2 3337076.6
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation epidemics, pandemics, strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l) In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
(m) In no event shall the Indenture Trustee be liable for failure to perform any duties or obligations hereunder if such failure was caused by another Person failing to perform its duties or obligations under the Transaction Documents.
(n) The Indenture Trustee may decline to taking any action at the written direction of the Noteholders in the event that the Indenture Trustee determines in good faith that the action may not lawfully be taken or that the Indenture Trustee believes in good faith that taking KL2 3337076.6 such action would subject the Indenture Trustee to personal liability or would be unjustly prejudicial to the non-directing Holders.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof7.1:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or KL2 2878899.10 document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of a Amortization Event, an Event of Default Default, or a Servicer Event of Default, or after the curing of all Amortization Events, Events of Default or Servicer Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesAdministrative Agent; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof7.01:
(ai) The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officers' Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel or advice shall be deemed constitute full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance with such Opinion of Counsel or advice;
(eiii) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture unless such Noteholders shall have offered to the Indenture Trustee such security or indemnity satisfactory to it against the costs, expenses, and liabilities that may be incurred therein or thereby that are reasonable in the opinion of the Indenture Trustee; PROVIDED, HOWEVER, that nothing contained herein shall relieve the Indenture Trustee of the obligations, upon the occurrence of an Event of Default (that has not been cured), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of skill and care in their exercise as a prudent Person would exercise under the circumstances in the conduct of such Person's own affairs;
(iv) Neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be personally liable for any action taken, suffered or omitted by it under this Indenture or in connection therewith, in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) Prior to the occurrence of an Event of Default or of which a Responsible Officer of the Indenture Trustee shall have actual knowledge and after the curing of all Events of Default which that may have occurred, the Indenture 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, consent, entitlement, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Holders of Notes evidencing Percentage Interests of not less than 25% of the Adjusted Note Balance of each Class of Notes; providedPROVIDED, howeverHOWEVER, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandrequesting party;
(fvi) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the custodian. The Indenture Trustee shall not be liable responsible for the misconduct, negligence or for the supervision of any acts of the Indenture Trustee's agents or omissions of such agents, attorneys or custodians appointed with due care by it hereunderthe Indenture Trustee hereunder or that of the Originator, the Servicer or the Issuers; and
(gvii) Delivery Whenever in the administration of the provisions of this Indenture or the other Transaction Documents, the Indenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any reportsaction to be taken hereunder, information such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or bad faith on the part of the Indenture Trustee, be deemed to be conclusively proved and documents established by a certificate signed by an Authorized Officer of the Issuers or the Servicer and delivered to the Indenture Trustee provided for herein and such certificate, in the absence of gross negligence or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and bad faith on the part of the Indenture Trustee’s receipt of such , shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as be full warrant to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof; PROVIDED, HOWEVER, nothing contained herein shall delay any action by the Indenture Trustee upon direction of the Majority Holders.
Appears in 1 contract
Samples: Indenture (HPSC Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 6.01 hereof:
(a) The the Indenture Trustee may conclusively rely on and shall fully be protected in acting or refraining from acting upon in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper party or partiesparties and shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall not be liable for any loss that may be occasioned thereby;
(b) Any request before the Indenture Trustee acts or direction refrains from acting, it may require and shall be entitled to receive, at the reasonable expense of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate of the Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or an omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(dc) The as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel, counsel and the advice or opinion of such counsel with respect to legal matters relating to the Indenture or any Opinion of Counsel the Notes shall be deemed full and complete authorization and protection from any liability in respect of any action taken, suffered, suffered or omitted by it hereunder in good faith and in reliance thereon;
(ed) Prior the Indenture Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Noteholders or any other Person pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Noteholders or such other Person (if direction by such Person is permitted or required under this Indenture or any other Transaction Document) shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to the Indenture Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, however, that, subject to Section 6.01(d), nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the receipt by a Responsible Officer of written notice of the occurrence of an Event of Default (which has not been cured or after waived) to exercise such of the curing rights and powers vested in it by this Indenture and to use the same degree of all Events care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of Default which may have occurred, his or her own affairs;
(e) the Indenture 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, approvalbond, bond note or other paper or document, unless requested believed by it to be genuine, but the Indenture Trustee, in writing so its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to do by Noteholders representing at least 66-2/3% make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Adjusted Note Balance of each Class of NotesIssuer and the Servicer, personally or by agent or attorney; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured (as determined by the Indenture Trustee in its sole discretion) to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable security or indemnity reasonably satisfactory to it against such costthe costs, expense or liability expenses and liabilities which may be incurred thereby as a condition to so proceeding. The ; the reasonable expense of every such examination shall be paid by the Servicer Person making such request, or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer Person making such request upon demand;
(f) The the Indenture Trustee may execute shall not be required to make any initial or periodic examination of any documents or records related to any of the trusts Trust Estate or powers hereunder Receivables Trust Estate for the purpose of establishing the presence or perform absence of defects, the compliance by the Issuer with its representations and warranties or for any duties hereunder either directly or by or through agents or attorneys or a custodian other purpose; (which may be an Affiliate of the Indenture Trustee), and g) the Indenture Trustee shall not be liable for any the acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents successor to the Indenture Trustee provided for herein so long as such acts or any other Transaction Document is for informational purposes only (unless otherwise expressly stated)omissions were not the result of the negligence, and bad faith or willful misconduct of the predecessor Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).;
Appears in 1 contract
Samples: Omnibus Amendment (Conns Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 6.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, the Back-Up Servicer or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the written advice of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default Default, or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of NotesNoteholder Majority; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof6.1:
(ai) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate, Opinion of Counsel, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(dii) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith faith, in the absence of negligence, and in reliance thereonaccordance with such Opinion of Counsel;
(eiii) Prior The Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or to institute, conduct or defend by litigation hereunder or in relation hereto at the request, order or direction of the Credit Enhancer or any of the Noteholders, pursuant to the provisions of this Indenture, unless such Noteholders or the Credit Enhancer, as applicable, shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured), to exercise such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in its exercise as a prudent person would exercise or after use under the curing circumstances in the conduct of such person's own affairs;
(iv) The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith, in the absence of negligence, and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(v) of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing at least 66-2/3the Credit Enhancer or Holders evidencing a Percentage Interest aggregating not less than 25% of the Adjusted Note Balance of each Class of NotesOutstanding Notes or any Account Party; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer Administrator or, if paid by the Indenture Trustee, shall be reimbursed repaid by the Servicer Administrator upon demanddemand from the Administrator's own funds;
(fvi) The right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(vii) The Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Trust created hereby or the powers granted hereunder; and
(viii) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates)attorneys.
Appears in 1 contract
Samples: Indenture (Banc One Abs Corp)
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Except as otherwise provided in Section 7.1 hereof11.01:
(ai) The the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bondappraisal, debenture, note, other evidence of indebtedness bond or other paper or document reasonably believed by it to be genuine genuine, absent manifest error, and to have been signed or presented by the proper party or parties;
(bii) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the any written advice or opinion of such counsel or any Opinion of Counsel shall be deemed full and complete authorization and protection in respect of any action taken, suffered, taken or suffered or omitted by it hereunder in good faith and in reliance thereonaccordance therewith;
(eiii) Prior the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby satisfactory to the Indenture Trustee, in its sole discretion; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture on any Indenture Supplement;
(v) prior to the occurrence of an Event of Default or and after the curing or waiving of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Noteholders representing Holders of Notes entitled to at least 66-2/325% of the Adjusted Note Balance of each Class of NotesVoting Rights; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable an indemnity satisfactory to the Indenture Trustee, in its sole discretion, against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demandaction;
(fvi) The the Indenture Trustee may execute any of the trusts or powers hereunder vested in it by this Indenture or any Indenture Supplement and may perform any its duties hereunder hereunder, either directly or by or through agents agents, attorneys, nominees or attorneys custodians, and the Indenture Trustee shall not be responsible for any misconduct or a negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided, that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (which may except as expressly set forth herein);
(vii) the Indenture Trustee shall not be an Affiliate responsible for any act or omission of the Servicer (unless, in the case of the Indenture Trustee), it is acting as Servicer) or the Manager;
(viii) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s fraud, negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any acts or omissions losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with reasonable instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its request from time to time such agentsidentifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, attorneys or custodians appointed with due care by it hereunderprotections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents; and
(gxiii) Delivery whenever in the administration of the provisions of this Indenture or any reports, information and documents to Indenture Supplement hereto the Indenture Trustee provided for herein shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any other Transaction Document is for informational purposes only (unless otherwise expressly stated)action or refraining from taking any action, and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled may require a certificate from an Executive Officer of the Issuers. The Indenture Trustee shall not be liable for any action it takes or omits to rely exclusively take in good faith in reliance on Officer’s Certificates)such certificate.
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 7.01 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon (and shall not be required to substantively review) any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, counsel and the advice of such counsel or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/351% of the Adjusted then Outstanding Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to KL2 2868730.8 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys attorneys, co-trustee or a custodian (which may be an Affiliate Affiliates of the Indenture Trustee), ) and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys attorneys, co-trustee or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), ) and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Certain Matters Affecting the Indenture Trustee. Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture 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, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand;
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j) To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k) Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l) In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
