Common use of Certain Rights of Manager Trustee Clause in Contracts

Certain Rights of Manager Trustee. (a) Subject to the provisions of Section 3.01: (i) The Manager Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any Officers’ Certificate, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties. (ii) Any direction, request, order or demand of the Company contemplated by this Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed). (iii) Whenever, in the administration of this Agreement, the Manager Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, such matter (unless other evidence is herein specifically prescribed), in the absence of negligence or bad faith on the part of the Manager Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Manager Trustee, and such Officers’ Certificate, in the absence of negligence or bad faith on the part of the Manager Trustee, shall be full warrant to the Manager Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Agreement upon the faith thereof. (iv) The Manager Trustee may, at the expense of the Company, consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Company or any of its Affiliates and may include any of its employees. The Manager Trustee shall have the right at any time to seek instructions concerning the administration of this Agreement from any court of competent jurisdiction. (v) The Manager Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any Securityholder unless such Securityholder shall have provided to the Manager Trustee such security and indemnity, satisfactory to the Manager Trustee, against the costs, expenses (including attorneys’ fees and expenses and the expenses of the Manager Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Manager Trustee; provided that, nothing contained in this Section 3.02(a)(v) shall be taken to relieve the Manager Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement. (vi) Prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default, the Manager Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, unless requested in writing to do so by a Majority of the Company Securities affected (voting as a single class), but the Manager Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit but shall incur no liability or additional liability of any kind by reason of such inquiry or investigation, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company. (vii) The Manager Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Manager Trustee shall not be responsible for any misconduct or negligence on the part of any agent, nominee, custodian or attorney appointed with due care by it hereunder. (viii) Whenever in the administration of this Agreement the Manager Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Manager Trustee (i) may request written instructions from a Majority of the Class B Preferred Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such written instructions. (ix) The Manager Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. (x) The rights, privileges, protections, immunities and benefits given to the Manager Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Manager Trustee in any other capacity in which it may act hereunder. (xi) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement. (b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Manager Trustee to perform any act or acts or exercise any right power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Manager Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Manager Trustee shall be construed to be a duty.

Certain Rights of Manager Trustee. (a) Subject to the provisions of Section 3.01: (i) The Manager Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any Officers’ Certificate, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed signed, sent or presented by the proper party or parties. (ii) Any direction, request, order direction or demand act of the Company contemplated by this Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed)Officer's Certificate. (iii) Whenever, in the administration of this Agreement, the Manager Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, such matter the Manager Trustee (unless other evidence is herein specifically prescribed)) may, in the absence of negligence or bad faith on the part its part, request and conclusively rely upon an Officer's Certificate which, upon receipt of the Manager Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Manager Trustee, and such Officers’ Certificate, in the absence of negligence or bad faith on the part of the Manager Trusteerequest, shall be full warrant to promptly delivered by the Manager Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Agreement upon the faith thereofCompany. (iv) The Manager Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) (or any rerecording, refiling or reregistration thereof). (v) The Manager Trustee may, at the expense of the Company, consult with counsel or other experts of its selection, and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Company or any of its Affiliates and may include any of its employees. The Manager Trustee shall have the right at any time to seek instructions concerning the administration of this Agreement from any court of competent jurisdiction. (vvi) The Manager Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any Securityholder Preferred Securityholder, unless such Preferred Securityholder shall have provided to the Manager Trustee such security and indemnity, satisfactory to the Manager Trustee, against the costs, expenses (including attorneys’ ' fees and expenses and the expenses of the Manager Trustee’s 's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Manager Trustee; provided that, nothing contained in this Section 3.02(a)(v3.02(a)(vi) shall be taken to relieve the Manager Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement. (vivii) Prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default, the The Manager Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, unless requested in writing to do so by a Majority of the Company Securities affected (voting as a single class), but the Manager Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit but shall incur no liability or additional liability of any kind by reason of such inquiry or investigation, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company. (viiviii) The Manager Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Manager Trustee shall not be responsible for any misconduct or negligence on the part of any agent, nominee, custodian agent or attorney appointed with due care by it hereunder. (viiiix) Any action taken by the Manager Trustee or its agents hereunder shall bind the Preferred Securityholders, and the signature of the Manager Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Manager Trustee to so act or as to its compliance with any of the terms and provisions of this Agreement, both of which shall be conclusively evidenced by the Manager Trustee or its agent taking such action. (x) Whenever in the administration of this Agreement the Manager Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Manager Trustee (i) may request written instructions from the Holders of a Majority in liquidation amount of the Class B Preferred Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such written instructions. (ixxi) The Manager Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. (x) The rights, privileges, protections, immunities and benefits given to the Manager Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Manager Trustee in any other capacity in which it may act hereunder. (xi) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement. (b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Manager Trustee to perform any act or acts or exercise any right right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Manager Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Manager Trustee shall be construed to be a duty.

Certain Rights of Manager Trustee. (a) Subject to the provisions of Section 3.01: (i) The Manager Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any Officers’ Certificate, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties. (ii) Any direction, request, order or demand of the Company contemplated by this Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed). (iii) Whenever, in the administration of this Agreement, the Manager Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, such matter (unless other evidence is herein specifically prescribed), in the absence of negligence or bad faith on the part of the Manager Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Manager Trustee, and such Officers’ Certificate, in the absence of negligence or bad faith on the part of the Manager Trustee, shall be full warrant to the Manager Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Agreement upon the faith thereof. (iv) The Manager Trustee may, at the expense of the Company, consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Company or any of its Affiliates and may include any of its employees. The Manager Trustee shall have the right at any time to seek instructions concerning the administration of this Agreement from any court of competent jurisdiction. (v) The Manager Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any Securityholder unless such Securityholder shall have provided to the Manager Trustee such security and indemnity, satisfactory to the Manager Trustee, against the costs, expenses (including attorneys’ fees and expenses and the expenses of the Manager Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Manager Trustee; provided that, nothing contained in this Section 3.02(a)(v) shall be taken to relieve the Manager Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement. (vi) Prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default, the Manager Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, unless requested in writing to do so by a Majority of the Company Securities affected (voting as a single class), but the Manager Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit but shall incur no liability or additional liability of any kind by reason of such inquiry or investigation, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company. (vii) The Manager Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Manager Trustee shall not be responsible for any misconduct or negligence on the part of any agent, nominee, custodian or attorney appointed with due care by it hereunder. (viii) Whenever in the administration of this Agreement the Manager Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Manager Trustee (i) may request written instructions from a Majority of the Class B Preferred Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such written instructions. (ix) The Manager Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. (x) The Manager Trustee shall not be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Manager Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that this provision shall not be deemed to apply in the event of a determination of willful misconduct on the part of the Manager Trustee in a non-appealable judgment of a court having jurisdiction. (xi) The Manager Trustee shall not 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, accidents, acts 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 (software and hardware) services; it being understood that the Manager Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. (xii) The rights, privileges, protections, immunities and benefits given to the Manager Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Manager Trustee in any other capacity in which it may act hereunder. (xixiii) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement. (b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Manager Trustee to perform any act or acts or exercise any right power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Manager Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Manager Trustee shall be construed to be a duty.

Certain Rights of Manager Trustee. (a) Subject to the provisions of Section 3.01: (i) The Manager Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any Officers’ Certificate, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed signed, sent or presented by the proper party or parties. (ii) Any direction, request, order direction or demand act of the Company contemplated by this Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed)' Certificate. (iii) Whenever, in the administration of this Agreement, the Manager Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, such matter the Manager Trustee (unless other evidence is herein specifically prescribed)) may, in the absence of negligence or bad faith on the part of the Manager Trusteeits part, be deemed to be request and conclusively proved and established by rely upon an Officers’ ' Certificate delivered to the Manager Trusteewhich, and upon receipt of such Officers’ Certificate, in the absence of negligence or bad faith on the part of the Manager Trusteerequest, shall be full warrant to promptly delivered by the Manager Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Agreement upon the faith thereofCompany. (iv) The Manager Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) (or any rerecording, refiling or reregistration thereof). (v) The Manager Trustee may, at the expense of the Company, consult with counsel or other experts of its selection, and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Company or any of its Affiliates and may include any of its employees. The Manager Trustee shall have the right at any time to seek instructions concerning the administration of this Agreement from any court of competent jurisdiction. (vvi) The Manager Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any Securityholder [Class B] Preferred Securityholder, unless such [Class B] Preferred Securityholder shall have provided to the Manager Trustee such security and indemnity, satisfactory to the Manager Trustee, against the costs, expenses (including attorneys’ ' fees and expenses and the expenses of the Manager Trustee’s 's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Manager Trustee; provided that, nothing contained in this Section 3.02(a)(v3.02(a)(vi) shall be taken to relieve the Manager Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement. (vivii) Prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default, the The Manager Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, unless requested in writing to do so by a Majority of the Company Securities affected (voting as a single class), but the Manager Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit but shall incur no liability or additional liability of any kind by reason of such inquiry or investigation, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company. (viiviii) The Manager Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Manager Trustee shall not be responsible for any misconduct or negligence on the part of any agent, nominee, custodian agent or attorney appointed with due care by it hereunder. (viiiix) Any action taken by the Manager Trustee or its agents hereunder shall bind the [Class B] Preferred Securityholders, and the signature of the Manager Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Manager Trustee to so act or as to its compliance with any of the terms and provisions of this Agreement, both of which shall be conclusively evidenced by the Manager Trustee or its agent taking such action. (x) Whenever in the administration of this Agreement the Manager Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Manager Trustee (i) may request written instructions from the Holders of a Majority in liquidation amount of the [Class B B] Preferred Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such written instructions. (ixxi) The Manager Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. (x) The rights, privileges, protections, immunities and benefits given to the Manager Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Manager Trustee in any other capacity in which it may act hereunder. (xi) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement. (b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Manager Trustee to perform any act or acts or exercise any right right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Manager Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Manager Trustee shall be construed to be a duty.