Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor, the Guarantor or the Regular Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's Certificate or a Guarantor Officers' Certificate, as applicable; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate or a Guarantor Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor, the Guarantor or the Regular Trustees; (iv) the Property 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 Property Trustee may, at the expense of AANAH, consult with counsel or other experts of its own selection and the advice or opinion of such counsel or experts with respect to legal matters or advice within the scope of such counsel or 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 AANAH or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property 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; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.

Appears in 1 contract

Samples: Trust Agreement (Abn Amro Bank Nv)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees ~~acting on behalf of the Trust~~ contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and ~~conclusively~~ rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee adequate security and ~~indemnity,~~ indemnity reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including attorneys' fees and ~~expenses and the expenses of the Property Trustee's agents, nominees or custodians~~expenses) 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 Property Trustee ~~and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement;~~ provided, that, nothing contained in this Section ~~3.10(a)(vi~~3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust Enforcement Event~~an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, security, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any ~~agent~~ agent, custodian, nominee or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action ~~hereunder,~~ hereunder the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such Exhibit (4)(t) remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement;and (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;. (~~xii~~b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~liable for~~ unqualified or incompetent in accordance with applicable law, to perform any ~~action taken, suffered~~such act or acts, or ~~omitted~~ to ~~be taken by it in good faith and reasonably believed by it~~ exercise any such right, power, duty or obligation. No permissive power or authority available to ~~be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (xiii)~~ the Property Trustee shall ~~not~~ be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed construed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunderduty.

Appears in 1 contract

Samples: Trust Agreement (Weyerhaeuser Co)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees ~~acting on behalf of the Trust~~ contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and ~~conclusively~~ rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee adequate security and ~~indemnity,~~ indemnity reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including attorneys' fees and ~~expenses and the expenses of the Property Trustee's agents, nominees or custodians~~expenses) 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 Property Trustee ~~and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement;~~ provided, that, nothing contained in this Section ~~3.10(a)(vi~~3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust Enforcement Event~~an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, security, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any ~~agent~~ agent, custodian, nominee or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action ~~hereunder,~~ hereunder the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such Exhibit (4)(s) remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement;and (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;. (~~xii~~b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~liable for~~ unqualified or incompetent in accordance with applicable law, to perform any ~~action taken, suffered~~such act or acts, or ~~omitted~~ to ~~be taken by it in good faith and reasonably believed by it~~ exercise any such right, power, duty or obligation. No permissive power or authority available to ~~be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (xiii)~~ the Property Trustee shall ~~not~~ be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed construed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunderduty.

Appears in 1 contract

Samples: Trust Agreement (Weyerhaeuser Co)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may ~~conclusively~~ rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust Agreement~~ Declaration shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust Agreement~~Declaration, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and ~~conclusively~~ rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel of its choice or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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~~ . (vi) Such counsel may be counsel to ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust Agreement~~ Declaration from any court of competent jurisdiction; (vivii) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust Agreement~~ Declaration at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee adequate security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property ~~Trustee and (b) the Property Trustee has been~~ Trustee. provided ~~with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided,~~ that, nothing contained in this Section ~~3.10(a)(vi~~3.10(a)(vii) shall be taken to relieve the Property Trustee, upon the occurrence of a ~~Trust Enforcement Event~~Declaration Event of Default, of its obligation to exercise the rights and powers vested in it by this ~~Trust Agreement~~Declaration; (~~vii~~viii) the Property 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, security, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property 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~~; (~~viii~~ix) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~agents, custodians, nominees~~ agents or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ixx) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust Agreement~~Declaration, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (xxi) whenever in the administration of this ~~Trust Agreement~~ Declaration the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action ~~hereunder,~~ hereunder the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in ~~conclusively relying on or~~ acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xixii) except as otherwise expressly provided by this ~~Trust Agreement~~Declaration, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust Agreement;~~Declaration; and (~~xii~~xiii) the Property 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 ~~Trust Agreement;~~Declaration. (~~xiii~~b) No provision of this Declaration shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~deemed to have notice of any default~~ unqualified or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee incompetent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such applicationapplicable law, ~~unless~~ to perform any such ~~Regular Trustee shall have consented in writing~~ act or acts, or to ~~any earlier date) unless prior to taking~~ exercise any such ~~action (~~right, power, duty or ~~the effective date in the case of an omission),~~ obligation. No permissive power or authority available to the Property Trustee shall ~~have received written instructions in response to such application providing the directions required~~ be construed to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereundera duty.

Appears in 1 contract

Samples: Declaration of Trust (American Equity Investment Life Holding Co)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust~~ Agreement shall be sufficiently evidenced by a Direction or an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of negligence or bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with competent legal counsel or other competent experts ~~of its own selection~~ and the advice or written opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel~~ legal counsel's or 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~~ . Such counsel may be counsel to ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees~~. The~~ ; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder, unless (aA) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ reasonable costs, expenses (including reasonable attorneys' fees and expenses and the reasonable expenses of the Property 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 Property Trustee and (bB) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by ~~Section 8.05(d) or (f), as~~ the ~~case may be,~~ applicable provisions of this Agreement~~; provided~~, ~~that,~~ provided that nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust Enforcement Event~~an Event of Default, of its obligation to exercise the rights and powers vested in it by this ~~Trust~~ Agreement; (vii) the Property Trustee shall ~~not~~ be ~~bound~~ under no obligation to ~~make any~~ conduct an 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or ~~attorneys~~ attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such ~~action~~ action, and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property ~~Trustee~~ Trustee (iA) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, ) (iiB) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received and~~ received, and (~~iii~~C) shall be protected in conclusively relying on or acting in accordance with such instructions~~; provided~~, ~~however,~~ provided that the Property Trustee shall not ~~be required to~~ take any action unless it shall have obtained ~~such~~ the legal ~~opinions, if any,~~ opinions required by ~~Section 8.05(d) or (f), as~~ the ~~case may be,~~ applicable provisions of this ~~Trust~~ Agreement; (xi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement;; and (xii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good ~~faith~~ faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this ~~Trust~~ Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.

Appears in 1 contract

Samples: Trust Agreement (Apache Corp)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust~~ Agreement ~~shall~~ may be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts of its ~~own~~ selection and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees~~. The~~ ; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including reasonable attorneys' fees and expenses and the expenses of the Property 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 Property Trustee ~~and (b)~~ in respect of the time, method or place of conducting any proceeding for any remedy available to the Property Trustee ~~has been provided with~~ or the ~~legal opinions, if any, required by Section 8.05(d)~~ exercise of any trust or ~~(f), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve~~ power conferred on the Property ~~Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by~~ Trustee under this ~~Trust~~ Agreement; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.or

Appears in 1 contract

Samples: Trust Agreement (Hercules Inc)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor, the Guarantor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust~~ Agreement ~~shall~~ may be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts of its ~~own~~ selection and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or the Property Trustee or any of its Affiliates, and may include any of its employees~~. The~~ ; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including reasonable attorneys' fees and expenses and the expenses of the Property 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 Property Trustee ~~and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement;~~ provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust Enforcement Event~~an Event of Default, of its obligation to exercise the rights and powers vested in it by this ~~Trust~~ Agreement; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the ~~trusts or~~ powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in ~~liquidation amount~~ Liquidation Amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on on, or acting in accordance ~~with~~ with, such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement; (xii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good ~~faith~~ faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this ~~Trust~~ Agreement;; and (xiii) the ~~Property Trustee shall not be deemed~~ rights, privileges, protections, immunities and benefits given to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, ~~and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder~~including, ~~the Property Trustee~~without limitation, at its ~~option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed~~ right to be ~~taken or omitted by the Property Trustee under this Trust Agreement~~ indemnified, are extended to, and ~~the date on and/or after which such action~~ shall be ~~taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken~~ enforceable by~~, or omission of~~, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such applicationeach of its capacities hereunder, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.

Appears in 1 contract

Samples: Trust Agreement (Mutual Risk Management LTD)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's ~~Certificate or a Guarantor Officers'~~ Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate ~~or a Guarantor Officers' Certificate~~ which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ re-registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel of its choice or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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;~~ opinion (such counsel may be counsel to ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees~~. The~~ ); and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee such security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ reasonable costs, expenses (including reasonable attorneys' fees and expenses and the reasonable expenses of the Property 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 Property ~~Trustee and (b) the Property Trustee has been~~ Trustee; provided ~~with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided, that,~~ that nothing contained in this Section ~~3.10(a)(vi~~3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see ~~fit, but~~ fit at the expense of the Sponsor and shall incur no ~~liability or additional~~ liability of any kind by reason of such inquiry or investigation; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or ~~attorneys~~ attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (ix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;; and (xii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a bankruptcy, such expenses (including the reasonable fees and expenses of its counsel) and the compensation for such services actually and reasonably incurred are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally. (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~liable for~~ unqualified or incompetent in accordance with applicable law, to perform any ~~action taken, suffered~~such act or acts, or ~~omitted~~ to ~~be taken by it in good faith and reasonably believed by it~~ exercise any such right, power, duty or obligation. No permissive power or authority available to ~~be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (xiii)~~ the Property Trustee shall ~~not~~ be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed construed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunderduty.

Appears in 1 contract

Samples: Trust Agreement (Chittenden Capital Trust I)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor, the Guarantor or the Regular Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's ’s Certificate or a Guarantor Officers' ’ Certificate, as applicable; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's ’s Certificate or a Guarantor Officers' ’ Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor, the Guarantor or the Regular Trustees; (iv) the Property 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 Property Trustee may, at the expense of AANAH, consult with counsel or other experts of its own selection and the advice or opinion of such counsel or experts with respect to legal matters or advice within the scope of such counsel or 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 AANAH or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' ’ fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property 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; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's ’s or its agent's ’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f)) , as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an ~~omission~~xxxxxx on), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.

Appears in 1 contract

Samples: Trust Agreement (Abn Amro Holding N V)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust~~ Agreement ~~shall~~ may be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts of its ~~own~~ selection and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees~~. The~~ ; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including reasonable attorneys' fees and expenses and the expenses of the Property 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 Property Trustee ~~and (b)~~ in respect of the time, method or place of conducting any proceeding for any remedy available to the Property Trustee ~~has been provided with~~ or the ~~legal opinions, if any, required by Section 8.05(d)~~ exercise of any trust or ~~(f), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve~~ power conferred on the Property ~~Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by~~ Trustee under this ~~Trust~~ Agreement; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in ~~liquidation amount~~ Liquidation Amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on on, or acting in accordance ~~with~~ with, such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement;; and (xii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good ~~faith~~ faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this ~~Trust~~ Agreement;. (~~xiii~~b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~deemed~~ unqualified or incompetent in accordance with applicable law, to ~~have notice of~~ perform any ~~default~~ such act or ~~Event of Default unless a Responsible Officer of~~ acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee ~~has actual knowledge thereof~~ shall be construed to be a duty. (c) It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Property Trustee hereunder on behalf of the Trust, (i) any agreements or ~~unless written notice~~ instruments executed or delivered by Wilmington Trust Company are executed and delivered not in its individual capacity but solely as Property Trustee under this Agreement in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Wilmington Trust Company in its individual capacity but is made and intended for the purpose of binding only the Trust, and (iii) under no circumstances (except with respect to funds delivered to it relating to payments in respect of the Securities) shall Wilmington Trust Company in its individual capacity be personally liable for the payment of any ~~event which is in fact such a default~~ indebtedness or ~~Event~~ expenses of ~~Default is received~~ the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the ~~Property Trustee at the Corporate~~ Trust ~~Office~~ under this Agreement except if such breach or failure is due to any negligence, bad faith or willful misconduct of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder.

Appears in 1 contract

Samples: Trust Agreement (Radio One Licenses LLC)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor~~Control Party, ~~the Guarantor~~ Successor Depositor or the ~~Regular~~ Administrative Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor~~Control Party, ~~the Guarantor~~ Successor Depositor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, ~~refiling~~ refilling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Successor Depositor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~Holder~~Holder pursuant to this Trust Agreement, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by Section ~~8.05(d~~8.04(d) or (f8.04(e), as the case may be, of this Trust Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation ~~to exercise the rights and powers vested in it by this Trust Agreement~~under Section 3.09; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the ~~Holders~~ Holders, which instructions may only be given by the Holders of the same proportion in ~~liquidation amount~~ Liquidation Amount of the Preferred Trust Securities as would be entitled to direct the Property Trustee under the terms of the Preferred Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in conclusively relying on or acting in or accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by ~~Section 8.05(d~~Sections 8.04(d) or (f8.04(e), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;, and (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice charged with knowledge of any default or ~~Event of Default~~ Trust Enforcement Event, as the case may be, with respect to the Preferred Trust Securities unless either (A) a Responsible Officer of the Property Trustee ~~has~~ shall have actual knowledge ~~thereof~~ of the default or ~~unless~~ Trust Enforcement Event, as the case may be, or (B) written notice of ~~any event which is in fact~~ such a default or ~~Event of Default is received by~~ Trust Enforcement Event, as the case may be, shall have been given to the Property Trustee at by the ~~Corporate Trust Office~~ Successor Depositor, the Administrative Trustees or by any Holder of the ~~Property Trustee~~Preferred Trust Securities; provided, ~~and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event~~ however, that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall be deemed to have ~~received written instructions in response~~ such actual knowledge if the default or Trust Enforcement Event results from a failure to ~~such application providing~~ pay distributions on the ~~directions required~~ Preferred Trust Securities as provided herein. (b) No provision of this Trust Agreement shall be deemed to ~~be given hereunder. In the event that~~ impose any duty or obligation on the Property Trustee ~~is also acting as authenticating agent~~to perform any act or acts or exercise any right, ~~Paying Agent~~power, ~~transfer agent and security registrar~~duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the ~~rights~~Property Trustee shall be unqualified or incompetent in accordance with applicable law, ~~privileges~~to perform any such act or acts, ~~immunities~~or to exercise any such right, ~~benefits and protections afforded~~ power, duty or obligation. No permissive power or authority available to the Property Trustee ~~pursuant~~ shall be construed to ~~this Article 3 shall also~~ be ~~afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder~~a duty.

Appears in 1 contract

Samples: Trust Agreement (Txu Europe Funding I L P)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee may, at the expense of ~~AANAH~~the Sponsor, consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by Section ~~8.05(d~~8.4(d) or (f8.5(c), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Trust Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (ia) may request instructions from the Holders of the Trust Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (iib) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (~~iii~~c) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by ~~Section 8.05(d~~Sections 8.4(d) or (f8.5(c), as the case may be, of this ~~Trust~~ Agreement;; and (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the ~~rights, privileges, immunities, benefits~~ rights and protections afforded to the Property Trustee pursuant to this Article 3 III shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security ~~registrar and~~ registrar. (b) No provision of this Trust Agreement shall be deemed to ~~each agent~~impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, ~~custodian and other Person employed~~ power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act ~~hereunder~~or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 1 contract

Samples: Trust Agreement (Hei Preferred Funding L P)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor~~Control Party, ~~the Guarantor~~ Successor Depositor or the ~~Regular~~ Administrative Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's ~~Certificate or a Guarantor Officers'~~ Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate ~~or a Guarantor Officers' Certificate~~ which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor~~Control Party, ~~the Guarantor~~ Successor Depositor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, ~~refiling~~ refilling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Successor Depositor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~Holder~~Holder pursuant to this Trust Agreement, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by Section ~~8.05(d~~8.04(d) or (f8.04(e), as the case may be, of this Trust Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation ~~to exercise the rights and powers vested in it by this Trust Agreement~~under Section 3.09; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the ~~Holders~~ Holders, which instructions may only be given by the Holders of the same proportion in ~~liquidation amount~~ Liquidation Amount of the Preferred Trust Securities as would be entitled to direct the Property Trustee under the terms of the Preferred Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in conclusively relying on or acting in or accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by ~~Section 8.05(d~~Sections 8.04(d) or (f8.04(e), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;, and (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice charged with knowledge of any default or ~~Event of Default~~ Trust Enforcement Event, as the case may be, with respect to the Preferred Trust Securities unless either (A) a Responsible Officer of the Property Trustee ~~has~~ shall have actual knowledge ~~thereof~~ of the default or ~~unless~~ Trust Enforcement Event, as the case may be, or (B) written notice of ~~any event which is in fact~~ such a default or ~~Event of Default is received by~~ Trust Enforcement Event, as the case may be, shall have been given to the Property Trustee at by the ~~Corporate Trust Office~~ Successor Depositor, the Administrative Trustees or by any Holder of the ~~Property Trustee~~Preferred Trust Securities; provided, ~~and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event~~ however, that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall be deemed to have ~~received written instructions in response~~ such actual knowledge if the default or Trust Enforcement Event results from a failure to ~~such application providing~~ pay distributions on the ~~directions required~~ Preferred Trust Securities as provided herein. (b) No provision of this Trust Agreement shall be deemed to ~~be given hereunder. In the event that~~ impose any duty or obligation on the Property Trustee ~~is also acting as authenticating agent~~to perform any act or acts or exercise any right, ~~Paying Agent~~power, ~~transfer agent and security registrar~~duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the ~~rights~~Property Trustee shall be unqualified or incompetent in accordance with applicable law, ~~privileges~~to perform any such act or acts, ~~immunities~~or to exercise any such right, ~~benefits and protections afforded~~ power, duty or obligation. No permissive power or authority available to the Property Trustee ~~pursuant~~ shall be construed to ~~this Article 3 shall also~~ be ~~afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder~~a duty.

Appears in 1 contract

Samples: Trust Agreement (Texas Utilities Co /Tx/)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's ~~Certificate or a Guarantor Officers'~~ Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate ~~or a Guarantor Officers' Certificate~~ which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee may, at the expense of ~~AANAH~~the Sponsor, consult with counsel or other experts of its ~~own~~ selection and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by Section ~~8.05(d~~8.4(d) or (f8.5(c), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Trust Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (ia) may request instructions from the Holders of the Trust Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (iib) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (~~iii~~c) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by ~~Section 8.05(d~~Sections 8.4(d) or (f8.5(c), as the case may be, of this ~~Trust~~ Agreement;; and (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the ~~rights, privileges, immunities, benefits~~ rights and protections afforded to the Property Trustee pursuant to this Article 3 III shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security ~~registrar and~~ registrar. (b) No provision of this Trust Agreement shall be deemed to ~~each agent~~impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, ~~custodian and other Person employed~~ power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act ~~hereunder~~or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 1 contract

Samples: Trust Agreement (Hawaiian Electric Industries Inc)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 ~~(whether in its original or facsimile form)~~ believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this ~~Trust~~ Agreement shall be sufficiently evidenced by a Direction or an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of negligence or bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with competent legal counsel or other competent experts ~~of its own selection~~ and the advice or written opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel~~ legal counsel's or 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~~ . Such counsel may be counsel to ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees~~. The~~ ; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder, unless (aA) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ reasonable costs, expenses (including reasonable attorneys' fees and expenses and the reasonable expenses of the Property 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 Property Trustee and (bB) the Property Trustee has ~~been provided with~~ obtained the legal opinions, if any, required by ~~Section 8.05(d) or (f), as~~ the ~~case may be,~~ applicable provisions of this Agreement~~; provided~~, ~~that,~~ provided that nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust Enforcement Event~~an Event of Default, of its obligation to exercise the rights and powers vested in it by this ~~Trust~~ Agreement; (vii) the Property Trustee shall ~~not~~ be ~~bound~~ under no obligation to ~~make any~~ conduct an 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or ~~attorneys~~ attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such ~~action~~ action, and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (iA) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action), (iiB) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (~~iii~~C) shall be protected in conclusively relying on or acting in accordance with such instructions~~; provided~~, ~~however,~~ provided that -------- the Property Trustee shall not ~~be required to~~ take any action unless it shall have obtained ~~such~~ the legal ~~opinions, if any,~~ opinions required by ~~Section 8.05(d) or (f), as~~ the ~~case may be,~~ applicable provisions of this ~~Trust~~ Agreement; (xi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement;; and (xii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good ~~faith~~ faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this ~~Trust~~ Agreement;. (~~xiii~~b) No provision of this Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall ~~not~~ be ~~deemed to have notice of any default~~ unqualified or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee incompetent in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such applicationapplicable law, ~~unless~~ to perform any such ~~Regular Trustee shall have consented in writing~~ act or acts, or to ~~any earlier date) unless prior to taking~~ exercise any such ~~action (~~right, power, duty or ~~the effective date in the case of an omission),~~ obligation. No permissive power or authority available to the Property Trustee shall ~~have received written instructions in response to such application providing the directions required~~ be construed to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereundera duty.

Appears in 1 contract

Samples: Trust Agreement (Apache Trust Ii)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this Trust Agreement shall be sufficiently evidenced by an Officer's ~~Certificate or a Guarantor Officers'~~ Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate ~~or a Guarantor Officers' Certificate~~ which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel of its choice or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including reasonable attorneys' fees and expenses and the expenses of the Property 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 Property ~~Trustee and (b) the Property Trustee has been~~ Trustee; provided ~~with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided,~~ that, nothing contained in this Section ~~3.10(a)(vi~~3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see ~~fit, but~~ fit at the expense of the Sponsor and shall incur no ~~liability or additional~~ liability of any kind by reason of such inquiry or investigation; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (ix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property Trustee shall not be liable for any action taken, ~~suffered,~~ suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the ~~discretion or~~ discretion, rights or powers conferred upon it by this Trust Agreement; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a bankruptcy, such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (xiv) the Property Trustee shall not be ~~deemed to have notice~~ charged with knowledge of ~~any default or~~ a Trust Enforcement Event ~~of Default~~ unless a Responsible Officer of the Property Trustee ~~has~~ obtains actual knowledge ~~thereof~~ of such event or ~~unless~~ the Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Capital Securities; (b) No provision of this Trust Agreement shall be deemed to impose any ~~event which is in fact such a default~~ duty or ~~Event of Default is received by~~ obligation on the Property Trustee ~~at the Corporate Trust Office of the Property Trustee~~to perform any act or acts or exercise any right, ~~and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv)~~ power, duty or obligation conferred or imposed on it, in ~~the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and~~ any ~~such application shall set forth~~ jurisdiction in ~~writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after~~ which ~~such action~~ it shall be ~~taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by~~illegal, or ~~omission of, the Property Trustee~~ in ~~accordance with a proposal included in such application on or after the date specified in such application (~~which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall ~~have received written instructions~~ be unqualified or incompetent in ~~response~~ accordance with applicable law, to perform any such ~~application providing the directions required~~ act or acts, or to ~~be given hereunder~~exercise any such right, power, duty or obligation. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded No permissive power or authority available to the Property Trustee ~~pursuant~~ shall be construed to ~~this Article 3 shall also~~ be ~~afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder~~a duty.

Appears in 1 contract

Samples: Trust Agreement (Banknorth Group Inc/Me)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.9: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees ~~acting on behalf of the Trust~~ contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' ’ Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' ’ Certificate which, upon receipt of such request, shall be promptly delivered by the ~~Sponsor, the Guarantor~~ Sponsor or the ~~Regular~~ Administrative Trustees; (iv) the Property 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~~re-recording, refiling or ~~reregistration~~ registration thereof; (v) the Property Trustee ~~may, at the expense of AANAH,~~ may consult with counsel of its choice or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Property Trustee or the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless ~~(a)~~ such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the ~~fees, charges,~~ costs, expenses (including reasonable attorneys' ’ fees and expenses and the expenses of the Property 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 Property ~~Trustee and (b) the Property Trustee has been~~ Trustee; provided ~~with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided,~~ that, nothing contained in this Section ~~3.10(a)(vi~~3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust ~~Agreement~~Agreement in the manner provided by Section 3.9(a); (vii) the Property 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, but the Property 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~~; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's ’s or its agent's ’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in ~~liquidation amount~~ Liquidation Amount of the ~~Trust~~ Securities as would be been entitled to direct the Property Trustee under the terms of the ~~Trust~~ Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property Trustee shall not be personally liable for the payment of any ~~action taken~~indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, ~~suffered~~representation, warranty or ~~omitted to be taken~~ covenant made or undertaken 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~~ Trust under this Trust Agreement, except if such breach or failure is due to any gross negligence or willful misconduct of the Property Trustee; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a bankruptcy, such expenses (including the reasonable fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; (xiv) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action to the extent not inconsistent with the treatment of the Trust as a grantor trust for federal income tax purposes; or (ii) in construing any of the provisions of this Trust Agreement, the Property Trustee finds the same ambiguous or inconsistent with other provisions contained herein; or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Sponsor requesting written instructions of the Sponsor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Sponsor; provided, however, that if the Property Trustee does not receive such instructions of the Sponsor within ten (10) Business Days after it has delivered such notice, or such reasonably shorter period of time set forth in such notice (which to the extent practicable shall not be less than two (2) Business Days), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Trust Agreement as it shall deem advisable and in the best interests of the Holders of the Trust, in which event the Property Trustee shall have no liability except for its own bad faith, gross negligence or willful misconduct; (xv) the Property Trustee shall not be ~~deemed to have notice~~ charged with knowledge of ~~any default or~~ a Trust Enforcement Event ~~of Default~~ unless a Responsible Officer of the Property Trustee ~~has~~ obtains actual knowledge ~~thereof~~ of such event or ~~unless~~ the Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Trust Preferred Securities. (b) No provision of this Trust Agreement shall be deemed to impose any ~~event which is in fact such a default~~ duty or ~~Event of Default is received by~~ obligation on the Property Trustee ~~at the Corporate Trust Office of the Property Trustee~~to perform any act or acts or exercise any right, ~~and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv)~~ power, duty or obligation conferred or imposed on it, in ~~the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and~~ any ~~such application shall set forth~~ jurisdiction in ~~writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after~~ which ~~such action~~ it shall be ~~taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by~~illegal, or ~~omission of, the Property Trustee~~ in ~~accordance with a proposal included in such application on or after the date specified in such application (~~which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall ~~have received written instructions~~ be unqualified or incompetent in ~~response~~ accordance with applicable law, to perform any such ~~application providing the directions required~~ act or acts, or to ~~be given hereunder~~exercise any such right, power, duty or obligation. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded No permissive power or authority available to the Property Trustee ~~pursuant~~ shall be construed to ~~this Article 3 shall also~~ be ~~afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder~~a duty.

Appears in 1 contract

Samples: Trust Agreement (Smithfield Foods Inc)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.09: (i) the Property Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor, the Guarantor or the Regular Trustees acting on behalf of the Trust contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate~~, as applicable~~; (iii) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Officer's Certificate or a Guarantor~~ Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor, the Guarantor or the Regular Trustees; (iv) the Property 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 Property Trustee may, at the expense of ~~AANAH~~the [Trust Common Securities Owner], consult with counsel or other experts of its own selection and the advice or opinion of such counsel or experts with respect to legal matters or advice within the scope of such counsel or 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 ~~AANAH~~ the [Trust Common Securities Owner] or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has been provided with the legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Agreement; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vii) the Property 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, but the Property 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; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(d) or (f), as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that the Property Trustee is also acting as authenticating agent, Paying Agent, transfer agent and security registrar, the rights, privileges, immunities, benefits and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such authenticating agent, Paying Agent, transfer agent and security registrar and to each agent, custodian and other Person employed to act hereunder. (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property 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 Property 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 Property Trustee shall be construed to be a duty.

Appears in 1 contract

Samples: Trust Agreement (Abn Amro Bank Nv)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~3.09~~3.09 hereof: (i) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~upon~~ upon, any Officers’ Certificate, any 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, sent~~ signed or presented by the proper party or parties; (ii) any ~~direction~~ direction, request, order or ~~act~~ demand of the ~~Sponsor, the Guarantor~~ Sponsor or the Regular Trustees acting on behalf of the Trust contemplated by this ~~Trust~~ Agreement shall be sufficiently evidenced by an ~~Officer's~~ Officers’ Certificate ~~or a Guarantor Officers' Certificate, as applicable~~(unless other evidence in respect thereof be herein specifically prescribed); (iii) whenever in the administration of this ~~Trust~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, ~~the Property Trustee~~ such matter (unless other evidence is herein specifically prescribed) ), may, in the absence of negligence or bad faith on ~~its part~~the part of the Property Trustee, ~~request~~ be deemed to be conclusively proved and ~~conclusively rely upon~~ established by an ~~Officer's~~ Officers’ Certificate delivered to the Property Trustee, and such Officers’ Certificate, in the absence of negligence or ~~a Guarantor Officers' Certificate which, upon receipt~~ bad faith on the part of ~~such request~~the Property Trustee, shall be ~~promptly delivered~~ full warrant to the Property Trustee for any action taken, suffered or omitted to be taken by it under the ~~Sponsor,~~ provisions of this Agreement upon the ~~Guarantor or the Regular Trustees~~faith thereof; (iv) the Property 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 Property Trustee may, at the expense of ~~AANAH~~the Bank, consult with counsel or other experts ~~of its own selection~~ and the advice or opinion of such counsel or and experts with respect to legal matters or advice within the scope of such ~~counsel or~~ 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 ~~AANAH~~ the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (viv) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any ~~Holder~~Holder of the Trust Securities, unless (a) such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including attorneys' ’ fees and expenses and the expenses of the Property 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 Property Trustee and (b) the Property Trustee has ~~been provided with~~ obtained the legal ~~opinions~~opinion, if any, required by Section ~~8.05(d~~8.05(g) or ~~(f)~~Section 8.06(b) hereof, as the case may be~~, of this Agreement~~; provided, ~~that,~~ that nothing contained in this Section ~~3.10(a)(vi~~3.10(a)(v) shall be taken to relieve the Property Trustee, upon the occurrence of ~~a Trust~~ an Enforcement Event, of its obligation to exercise the rights and powers vested in it by this ~~Trust~~ Agreement; (~~vii~~vi) prior to the occurrence of any Enforcement Event and after the curing or waiving of all Enforcement Events, the Property 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 Trust Securities affected (voting as a single class) but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see ~~fit,~~ fit but shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (~~viii~~vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any ~~agent~~ agent, custodian, nominee or attorney appointed with due care by it hereunder; (ixviii) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the ~~Holders~~Holders of the Trust Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this ~~Trust~~ Agreement, both of which shall be conclusively evidenced by the Property Trustee's ’s or its agent's ’s taking such action; (xix) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request written instructions from the ~~Holders which instructions may only be given by the Holders of the same proportion in liquidation amount~~ Majority or Other Stated Percentage of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; provided, however, that the Property Trustee shall not be required to take any action unless it shall have obtained such legal opinions, if any, required by Section ~~8.05(d~~8.05(g) or ~~(f)~~Section 8.06(d) hereof, as the case may be, of this Trust Agreement; (xi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (xii) the Property 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 Trust Agreement; (xiii) the Property Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Property Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the Trust Preferred Securities and this Trust Agreement; and (xiv) in the event that direction from the Regular Trustees is required hereunder, the Property Trustee, at its option, may make application to the Regular Trustee for written instructions and any such application shall set forth in writing any action proposed to be taken or omitted by the Property Trustee under this Trust Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Property Trustee shall not be liable for any action taken by, or omission of, the Property Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Regular Trustee actually receives such application, unless any such Regular Trustee shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Property Trustee shall have received written instructions in response to such application providing the directions required to be given hereunder. In the event that If the Property Trustee is also acting as ~~authenticating agent~~Authenticating Agent, Paying Agent, ~~transfer agent and security registrar~~Transfer Agent and/or Registrar, the ~~rights, privileges, immunities, benefits~~ rights and protections afforded to the Property Trustee pursuant to this Article 3 shall also be afforded to such ~~authenticating agent~~Authenticating Agent, Paying Agent, ~~transfer agent~~ Transfer Agent and ~~security registrar and~~ Registrar. (b) No provision of this Agreement shall be deemed to ~~each agent~~impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, ~~custodian and other Person employed~~ power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act ~~hereunder~~or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 1 contract

Samples: Trust Agreement (Deutsche Bank Contingent Capital LLC III)

Common use of Certain Rights of Property Trustee Clause in Contracts