Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act: (a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement; (c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee; (d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction; (g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement; (h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and (i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 7 contracts
Samples: Pass Through Trust Agreement (America West Airlines Inc), Pass Through Trust Agreement (America West Airlines Inc), Pass Through Trust Agreement (America West Airlines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b2) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description an Issuer Request or Issuer Order and any resolution of the subject matter thereof accompanied Board may be sufficiently evidenced by a Board Resolution certified by the Secretary or an Officer's Certificate Assistant Secretary of the Issuer to have been duly adopted by the Board of the Issuer and an Opinion to be in full force and effect on the date of Counsel as provided in Section 1.02 of this Agreementsuch certification, and delivered to the Trustee;
(c3) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith gross negligence or willful misconduct on its part, conclusively rely upon an Officer's ’s Certificate or Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d4) the Trustee shall not be charged with knowledge of any fact, Default or Event of Default with respect to the Notes unless written notice of such fact, Default or Event of Default shall have been received by a Responsible Officer from the Issuer, any other obligor of the Notes or from Holders of at least 30% of the aggregate principal amount of the Notes and references this Indenture and the Notes. Delivery of any reports to the Trustee pursuant to Section 10.09 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(5) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with the advice or opinion of such counsel or Opinion of Counsel;
(e6) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costany loss, expenses and liabilities which might be incurred by it in compliance with such Directionliability, claim or expense;
(g7) the 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, or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation;
(8) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h9) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of discretion or rights or powers conferred upon it by this Indenture;
(10) the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder whether as an Agent or exercising any trust or power conferred upon the Trusteeotherwise, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(i11) the Trustee may request that the Issuer deliver an incumbency certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which incumbency certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(12) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(13) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(14) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under this Agreementthe circumstances;
(15) in no event shall the Trustee be responsible or liable for special, indirect, punitive or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or powers, if it damage and regardless of the form of action;
(16) the Trustee shall have reasonable grounds for believing no obligation to pursue any action that repayment of such funds or adequate indemnity against such risk is not reasonably assured in accordance with applicable law;
(17) in no event shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes issued hereunder; and
(18) the permissive right of the Trustee to ittake actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
Appears in 5 contracts
Samples: Indenture (PennyMac Financial Services, Inc.), Indenture (PennyMac Financial Services, Inc.), Indenture (PennyMac Financial Services, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) Following the occurrence of a Default or an Event of Default, the Trustee is entitled to require all Agents to act under its direction;
(b) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless written notice of such Default or Event of Default from the Issuer or any Holder is received by a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. In the absence of receipt of such notice, the Trustee may each conclusively assume that there is no Default or Event of Default;
(c) The Trustee may rely conclusively, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bd) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both, which shall conform to Section 10.02. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel and such Officer’s Certificate or Opinion of Counsel will be equal to complete authorization;
(e) The Trustee may execute any of the trusts or powers hereunder either directly or by or through its attorneys, custodians, nominees and agents and shall not be responsible for the misconduct or negligence or for the supervision, of any attorney, custodian, nominee or agent appointed with due care by it hereunder;
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and/or indemnity (including by an Officer's Certificate way of prefunding) satisfactory to the Trustee against the costs, expenses and an Opinion of Counsel as provided liabilities that might be incurred by the Trustee in Section 1.02 of this Agreementcompliance with such request or direction;
(cg) whenever Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of such Issuer;
(h) The Trustee (or any of its officers, directors, employees or agents) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(i) Whenever, in the administration of this Agreement Indenture, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's ’s Certificate and such matter be deemed to be conclusively proved and established by an Officer’s Certificate, and such Officer’s Certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the Company, any Owner Trustee or any Loan Trusteereliance thereof;
(dj) The 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 Trustee, in its discretion (but shall have no obligation) may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney;
(k) The Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(l) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee shall not be obligated to act upon any such directions unless and until it receives a joint instruction from such directing parties or an instruction from one party with the consent of the other;
(m) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(n) Delivery of reports, information and documents to the Trustee under Section 4.10 is for informational purposes only and the Trustee’s receipt of the foregoing will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any of its Restricted Subsidiary’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(o) The Trustee shall not be liable for interest on, or to invest, any money received by it except as the Trustee may agree in writing with the Issuer;
(p) The rights, privileges, protections, immunities and benefits given to the Trustee in this Indenture, including, without limitation, its rights to be indemnified and compensated, are extended to, and will be enforceable by, the Trustee in its capacity hereunder, by the Registrar, the Agents, and each agent, custodian and other Person employed to act hereunder;
(q) The Trustee may consult with counsel or other professional advisors and the advice of such counsel or professional advisor or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(er) the The Trustee shall be under have no obligation duty to exercise any inquire as to the performance of the rights or powers vested in it by this Agreement at the Direction of any covenants of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it Issuer and/or its Restricted Subsidiaries in compliance with such DirectionArticle Four hereof;
(gs) the The Trustee may execute shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of the trusts or powers minimum denominations imposed under this Agreement Indenture or perform under applicable law or regulation with respect to any duties under this Agreement either directly transfer, exchange, redemption, purchase or by or through agents or attorneysrepurchase, and the as applicable, of any interest in any Notes, but may at its sole discretion, choose to do so;
(t) The Trustee shall not be responsible or liable for any misconduct failure or negligence on delay in the part performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any agent law or attorney appointed with due care by it under this Agreement;regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics or other public health crises; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action or any other causes beyond the Trustee’s control whether or not of the same class or kind as specified above.
(hu) The Trustee shall not under any circumstance be liable for any indirect or consequential loss, special or punitive damages (including loss of business, goodwill or reputation, opportunity or profit of any kind) of the Issuer or any Restricted Subsidiary even if advised of it in advance and even if foreseeable.
(v) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(w) The Trustee shall not be liable with respect to any person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
(x) No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to applicable law or regulation.
(y) The Trustee may refrain from taking any action taken in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, the State of New York and may without liability (other than in respect of actions constituting willful misconduct or omitted gross negligence) do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
(z) The Trustee may assume without inquiry in the absence of actual knowledge that the Issuer is duly complying with its obligations contained in this Indenture required to be taken performed and observed by it in good faith in accordance it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.
(aa) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the Direction authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in actual sender of such Instructions and that the Trust relating Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the timeTrustee have been sent by such Authorized Officer. The Issuer shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, method and place of conducting any proceeding passwords and/or authentication keys upon receipt by the Issuer. The Trustee shall not be liable for any remedy available losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or exercising any trust or power conferred upon unauthorized use of the security procedures.
(bb) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable AML Laws”), the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, under this Agreement; and
(i) each of the parties agrees to provide to the Trustee shall not upon its request from time to time such identifying information and documentation as may be required available for such party in order to expend or risk its own funds in enable the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured Trustee to itcomply with Applicable AML Laws.
Appears in 5 contracts
Samples: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits) for any action it takes or omits to take, even if the Trustee has been advised of the likelihood of such loss or damage.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 5 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc), Indenture (Continental Resources Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits) for any action it takes or omits to take, even if the Trustee has been advised of the likelihood of such loss or damage.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 13.02, and such notice references the Notes.
(h) Subject to Section 8.01(b)(2), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 5 contracts
Samples: Fifth Supplemental Indenture (SM Energy Co), Indenture (SM Energy Co), Fourth Supplemental Indenture (SM Energy Co)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits) for any action it takes or omits to take, even if the Trustee has been advised of the likelihood of such loss or damage.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(2), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 5 contracts
Samples: Indenture (SM Energy Co), Indenture (SM Energy Co), Indenture (SM Energy Co)
Certain Rights of Trustee. Subject to the provisions of Section 315 SECTION 4.1, including without limitation, the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of a Breach:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, as necessary for such inquiry or investigation at the sole cost of the Company and shall incur no liability of any kind by reason of such inquiry or investigation other than as a result of Trustee’s gross negligence or willful misconduct;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of discretion or rights or powers conferred upon it by this CVR Agreement;
(i) the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Paying Agent, the Security Registrar, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) in no event shall the Trustee be responsible or exercising liable for special, indirect, or consequential loss or damage of any trust kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or power conferred upon damage and regardless of the form of action;
(k) certain of the Trustee, under this Agreement; and’s duties hereunder may be performed by the Paying Agent or Security Registrar;
(il) the Trustee shall not be deemed to have knowledge of any Breach except any Breach of which the Trustee shall have received written notification or otherwise obtained actual knowledge. In the absence of such notice, the Trustee may conclusively assume there is no Breach except as aforesaid;
(m) the Trustee shall not be required to expend give any bond or risk surety in respect of the performance of its own funds powers and duties hereunder;
(n) the permissive rights of the Trustee enumerated in this CVR Agreement shall not be construed as duties hereunder;
(o) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this CVR Agreement; and
(p) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties under this Agreementcontrol, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities or communications services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured banking industry to itresume performance as soon as practicable under the circumstances.
Appears in 4 contracts
Samples: Contingent Value Rights Agreement (Wright Medical Group Inc), Contingent Value Rights Agreement (Wright Medical Group Inc), Contingent Value Rights Agreement (Wright Medical Group Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's ’s Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's ’s Certificate of the Company, any Owner Trustee Company or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 4 contracts
Samples: Pass Through Trust Agreement (Jetblue Airways Corp), Pass Through Trust Agreement (Jetblue Airways Corp), Pass Through Trust Agreement (Jetblue Airways Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits) for any action it takes or omits to take, even if the Trustee has been advised of the likelihood of such loss or damage.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand to each agent, custodian and other Person employed to act hereunder.
(ij) The permissive rights of the Trustee enumerated herein shall not be required construed as duties.
(k) Delivery of reports, information and documents pursuant to expend or risk its own funds in Section 4.03 hereof to the performance Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any of its duties under this Agreementinformation contained therein or determinable from information contained therein, or in including the exercise of Company’s compliance with any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk the covenants hereunder (as to which the Trustee is not reasonably assured entitled to itrely exclusively on Officers’ Certificates).
Appears in 4 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have furnished to the Trustee security or indemnity satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action. IN NO EVENT SHALL THE TRUSTEE BE LIABLE TO ANY PERSON FOR SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS) FOR ANY ACTION IT TAKES OR OMITS TO TAKE, EVEN IF THE TRUSTEE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 13.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(2), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand to each agent, custodian and other Person employed to act hereunder.
(ij) The Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee shall not be required determines is unduly prejudicial to expend or risk its own funds in the performance right of any of its duties under this Agreement, other Holder or that would involve the Trustee in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itpersonal liability.
Appears in 4 contracts
Samples: Supplemental Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers’ Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with due care by it under this Agreement;Section 12.02 hereof, and such notice references the Notes.
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeThe rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each officer, director and employee of the Trustee, under this Agreement; and.
(i) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(j) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of any of its powers and duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to ithereunder.
Appears in 4 contracts
Samples: Indenture, Exhibit, Execution Version (Geo Group Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b2) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description an Issuer Request or Issuer Order and any resolution of the subject matter thereof accompanied Board may be sufficiently evidenced by a Board Resolution certified by the Secretary or an Officer's Certificate Assistant Secretary of the Issuer to have been duly adopted by the Board of the Issuer and an Opinion to be in full force and effect on the date of Counsel as provided in Section 1.02 of this Agreementsuch certification, and delivered to the Trustee;
(c3) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith faith, gross negligence or willful misconduct on its part, conclusively rely upon an Officer's ’s Certificate or Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d4) the Trustee shall not be charged with knowledge of any fact, Default or Event of Default with respect to the Notes unless written notice of such fact, Default or Event of Default shall have been received by a Responsible Officer from the Issuer, any other obligor of the Notes or from Holders of at least 30% of the aggregate principal amount of the Notes and references this Indenture and the Notes. Delivery of any reports to the Trustee pursuant to Section 10.09 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(5) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with the advice or opinion of such counsel or Opinion of Counsel;
(e6) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costany loss, expenses and liabilities which might be incurred by it in compliance with such Directionliability, claim or expense;
(g7) the 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, or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation;
(8) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h9) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of discretion or rights or powers conferred upon it by this Indenture;
(10) the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder whether as an Agent or exercising any trust or power conferred upon the Trusteeotherwise, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(i11) the Trustee may request that the Issuer deliver an incumbency certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which incumbency certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(12) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(13) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(14) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under this Agreementthe circumstances;
(15) in no event shall the Trustee be responsible or liable for special, indirect, punitive or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or powers, if it damage and regardless of the form of action;
(16) the Trustee shall have reasonable grounds for believing no obligation to pursue any action that repayment of such funds or adequate indemnity against such risk is not reasonably assured in accordance with applicable law;
(17) in no event shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes issued hereunder; and
(18) the permissive right of the Trustee to ittake actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
Appears in 4 contracts
Samples: Indenture (Mr. Cooper Group Inc.), Indenture (Mr. Cooper Group Inc.), Indenture (Mr. Cooper Group Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document and may in good faith conclusively rely as to the truth of the statements and the correctness of the opinions therein;
(bii) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate, opinion and/or an accountants' certificate;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; provided, however, that the Trustee's conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter fact or circumstance be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeCertificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hvii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon matters as it may see fit, and, if the TrusteeTrustee shall determine to make such further inquiry or investigation, under this Agreementit shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney; and
(iviii) any request or direction of the Trustee Company mentioned herein shall not be required to expend or risk its own funds in sufficiently evidenced by a written Company Order and any resolution of the performance Board of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itDirectors may be sufficiently evidenced by a written Board Resolution.
Appears in 4 contracts
Samples: Senior Deferred Interest Notes Indenture (Winstar Communications Inc), Indenture (Winstar Communications Inc), Indenture (Winstar Communications Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 SECTION 4.1, including without limitation, the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of a Breach:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's ’s Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, as necessary for such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Paying Agent, the Security Registrar, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) in no event shall not the Trustee be required to expend responsible or risk its own funds in the performance liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its duties under this Agreement, or in profit) irrespective of whether the exercise Trustee has been advised of any of its rights or powers, if it shall have reasonable grounds for believing that repayment the likelihood of such funds loss or adequate indemnity against such risk is not reasonably assured to itdamage and regardless of the form of action; and
(k) certain of the Trustee’s duties hereunder may be performed by the Paying Agent or Security Registrar.
Appears in 3 contracts
Samples: Contingent Value Rights Agreement, Contingent Value Rights Agreement (Community Health Systems Inc), Contingent Value Rights Agreement (Health Management Associates, Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee Company or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 3 contracts
Samples: Pass Through Trust Agreement (Jetblue Airways Corp), Pass Through Trust Agreement (Jetblue Airways Corp), Pass Through Trust Agreement (Jetblue Airways Corp)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.01:
(ai) the Trustee may rely conclusively, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both, which shall conform to Section 13.05. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney and shall not incur any additional liability or assume any additional obligations by reason of such further inquiry or investigation;
(viii) the Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(ix) in the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken;
(x) the permissive right of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(xi) delivery of reports, information and documents to the Trustee under Section 4.21 is for informational purposes only and the Trustee’s receipt of the foregoing will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(xii) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its rights to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(xiii) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;; and
(exiv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible or liable for any misconduct special, indirect, or negligence on the part consequential loss or damage of any agent kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or attorney appointed with due care by it under this Agreement;damage and regardless of the form of actions.
(hb) The Trustee may request that the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with Issuer deliver an Officer’s Certificate setting forth the Direction names of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itsuperseded.
Appears in 3 contracts
Samples: Indenture (Digicel Group LTD), Indenture (Digicel Group LTD), Indenture (Digicel Group LTD)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.01:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture security or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;.
(b) any request Any request, direction, order or direction demand of the Company mentioned herein shall be sufficiently evidenced by a written description Board Resolution or an instrument signed in the name of the subject matter thereof accompanied Company by an Officer's Certificate and an Opinion of Counsel as provided Officer (unless other evidence in Section 1.02 of this Agreement;respect thereof is specifically prescribed herein).
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith and in reliance thereon;.
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request, order or direction of any of the Certificateholders Securityholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Securityholders shall have offered to the Trustee reasonable indemnity and security or indemnity satisfactory to it against the costcosts, expenses and liabilities which might that may be incurred therein or thereby.
(e) In the event the Company is required to pay Additional Interest, the Company will provide an Officer’s Certificate to the Trustee of the Company’s obligation to pay Additional Interest no later than 15 days prior to the next Interest Payment Date, which Officer’s Certificate shall set forth the amount of the Additional Interest to be paid by the Company. The Trustee shall not at any time be under any duty or responsibility to any Holders to determine whether the Additional Interest is payable and the amount thereof.
(f) The Trustee shall not be liable for any action taken or omitted to be taken by it in compliance with such Direction;good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other papers or documents, but the Trustee, in its discretion, may make such further inquiry into such matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee and such notice references the Securities and this Indenture.
(i) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(hj) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeThe rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ik) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(l) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(m) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of any of its powers and duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to ithereunder.
Appears in 3 contracts
Samples: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC), Indenture (Covidien PLC)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding its right to be indemnified, under this Agreement; and
(i) are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 3 contracts
Samples: Indenture (Laredo Petroleum, Inc.), Indenture (Laredo Petroleum Holdings, Inc.), Indenture (Laredo Petroleum, Inc.)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act10.01:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture security, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;.
(b) any request Any request, direction, order, Authentication Order or direction demand of the Company Issuers mentioned herein shall be sufficiently evidenced by a written description Board Resolution or an instrument signed in the name of the subject matter thereof accompanied Issuers by an Officer's Certificate and an Opinion of Counsel as provided Officer (unless other evidence in Section 1.02 of this Agreement;respect thereof is specifically prescribed herein).
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith and in reliance thereon;.
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request, order or direction of any of the Certificateholders Securityholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Securityholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which might that may be incurred therein or thereby.
(e) The Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in compliance with good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(f) The 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, approval, bond, security, other evidence of indebtedness or other papers or documents, but the Trustee, in its discretion, may make such Direction;further inquiry into such matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney at the sole cost of the Issuers and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(h) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(hi) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeThe rights, method privileges, protections, benefits and place of conducting any proceeding for any remedy available immunities given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ij) The Trustee may request that the Issuers deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(k) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of any of its powers and duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to ithereunder.
Appears in 3 contracts
Samples: Indenture (ADT Inc.), Indenture (ADT Inc.), Indenture (ADT Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 3 contracts
Samples: Pass Through Trust Agreement (Continental Airlines Inc /De/), Pass Through Trust Agreement (Continental Airlines Inc /De/), Pass Through Trust Agreement (Continental Airlines Inc /De/)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or partiespersons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;
(b) any request before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and and/or an Opinion of Counsel Counsel, which shall conform to Section 10.04 and shall cover such other matters as provided the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate the part of the CompanyTrustee, any Owner Trustee or any Loan be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee;
(c) the Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care;
(d) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Company;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it in its sole discretion against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers under this Indenture; provided that the Trustee’s conduct does not constitute negligence or bad faith;
(g) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(eh) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered prior to the Trustee reasonable security occurrence of an Event of Default hereunder and after the curing or indemnity against the costwaiving of all Events of Default, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for bound to make any misconduct investigation into the facts or negligence on matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the part Holders of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest aggregate Principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the Trust relating to making of such investigation is, in the time, method and place opinion of conducting any proceeding for any remedy available to the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity satisfactory to it against such expenses or exercising any trust or power conferred upon the Trustee, under this Agreement; andliabilities as a condition to proceeding;
(i) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture;
(j) in no event shall the Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit); and
(k) delivery of such information, documents or reports to the Trustee pursuant to this Article 7 is for informational purposes only and the Trustee’s receipt thereof shall not be required to expend constitute actual or risk its own funds constructive notice of any information contained therein or determinable from information contained therein, including, in the performance case of Section 7.02(d), the Company’s compliance with any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk covenants hereunder (as to which the Trustee is not reasonably assured entitled to itrely exclusively on an Officers’ Certificate).
Appears in 3 contracts
Samples: Indenture (Avangrid, Inc.), Indenture (Avangrid, Inc.), Indenture (Avangrid, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) 6.1: the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) ; any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order, or as otherwise expressly provided herein, and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) a Board Resolution; whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's ’s Certificate; before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of the Company, Counsel or both. The Trustee shall not be liable for any Owner Trustee action it takes or any Loan Trustee;
(d) the omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) ; the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture (including, without limitation, instituting, conducting or defending any litigation), unless such Certificateholders Holders shall have offered to the Trustee reasonable security or and/or indemnity satisfactory to it against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) request or direction; the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the 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; the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder (including Security Registrar and Paying Agent), and each agent, custodian and other Person employed to act hereunder; the Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Agreement;
Indenture; in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (hincluding, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; the Trustee may request that the Company deliver an certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions with respect to any series of Securities pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or military authorities and governmental action; the Trustee shall have no responsibility for any information in any offering document or other disclosure material distributed with respect to any action taken series of Securities, and the Trustee shall have no responsibility for compliance with any state or omitted federal securities laws in connection with the Securities, other than the filing of any documents required to be taken filed by it an indenture trustee pursuant to the Trust Indenture Act or otherwise required in good faith in accordance with the Direction Indenture; the permissive rights of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating Trustee to do things enumerated in this Indenture shall not less than a majority in interest in the Trust relating to the time, method be construed as duties; and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required deemed to expend have notice or risk its own funds in the performance be charged with knowledge of any default or Event of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment Default unless written notice of such funds default or adequate indemnity against Event of Default from the Company or any Holder is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such risk is not reasonably assured to itnotice references the Securities and this Indenture.
Appears in 3 contracts
Samples: Indenture (B. Riley Financial, Inc.), Indenture (B. Riley Financial, Inc.), Indenture (B. Riley Financial, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have furnished to the Trustee security or indemnity satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action. IN NO EVENT SHALL THE TRUSTEE BE LIABLE TO ANY PERSON FOR SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS) FOR ANY ACTION IT TAKES OR OMITS TO TAKE, EVEN IF THE TRUSTEE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 16.02, and such notice references the Notes.
(h) Subject to Section 10.01(b)(2), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be genuine indemnified, are extended to, and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunderenforceable by, the Trustee (unless in each of its capacities hereunder, and to each agent, custodian and other evidence be herein specifically prescribed) mayPerson employed to act hereunder, in including the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;Collateral Agent.
(dj) The Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee may consult with counsel and determines is unduly prejudicial to the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect right of any action taken, suffered other Holder or omitted by it hereunder that would involve the Trustee in good faith and in reliance thereon;personal liability.
(ek) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible or liable for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with at the Direction direction of the Certificateholders Holders holding Certificates evidencing Fractional Undivided Interests aggregating a principal amount of the Notes not less than a majority in interest in the Trust relating principal amount of Notes required to make such direction pursuant to this Indenture as to the time, method and place of conducting any proceeding proceedings for any remedy available to the TrusteeTrustee or the exercising of any power conferred by this Indenture.
(l) Any action taken, or exercising any trust or power conferred omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the Trusteerequest or authority or consent of any Person who, under this Agreement; andat the time of making such request or giving such authority or consent, is the holder of any Note and such request or authorization or consent shall be conclusive and binding upon future holders of Notes executed and delivered in exchange therefor or in place thereof.
(im) The Trustee may request that the Company delivers an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(n) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture.
(o) The Trustee shall not be responsible or liable for any failure or delay in the performance of any of its duties obligations under this AgreementIndenture arising out of or caused, directly or in the exercise indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of any God, earthquakes, fire, flood, terrorism, wars and other military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunction of its rights utilities, computer (hardware or powerssoftware) or communication services, if it shall have reasonable grounds for believing that repayment accidents, labor disputes, and acts of such funds civil or adequate indemnity against such risk is not reasonably assured to itmilitary authorities and governmental actions.
Appears in 3 contracts
Samples: Indenture (Goodrich Petroleum Corp), Note Purchase Agreement (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 4.1, including without limitation, the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 3 contracts
Samples: Contingent Value Rights Agreement (Celgene Corp /De/), Contingent Value Rights Agreement (Abraxis BioScience, Inc.), Contingent Value Rights Agreement (APP Pharmaceuticals, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely conclusively rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance, on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee's conduct does not constitute gross negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers' Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(viii) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;; and
(eix) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed with due care Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by it under the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this AgreementIndenture;
(hx) the Trustee shall not be liable with respect to for any action taken take, suffered, or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction of discretion or rights or powers conferred upon it by this Indenture; and
(xi) the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 3 contracts
Samples: Indenture (Advanced Lighting Technologies Inc), Indenture (Advanced Lighting Technologies Inc), Reorganization Plan, Lock Up and Voting Agreement (Advanced Lighting Technologies Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers' Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers' Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed with due care by it under this Agreement;
(h) Event of Default unless a Responsible Officer of the Trustee shall not be liable with respect has actual knowledge thereof or unless written notice of such event is sent to any action taken or omitted to be taken by it in good faith the Trustee in accordance with Section 12.02 hereof, and such notice references the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itNotes.
Appears in 3 contracts
Samples: Indenture (Texas Industries Inc), Indenture (Klingel Carpenter Mortuary Inc), Indenture (Monitronics International Inc)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.1:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance under covenants or other obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 13.7. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance upon on such Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents, and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(e) The permissive rights of the Trustee to take actions enumerated in this Indenture shall not be construed as duties.
(f) Except with respect to Section 4.1, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in ARTICLE IV. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default, except (i) any Default or Event of Default occurring pursuant to Section 6.1(a)(2) or (ii) any Default or Event of Default of which a Responsible Officer shall have received written notification from the Company or any Securityholder of such Default or Event of Default at the Corporate Trust Office, and such notice references the applicable series of Securities and this Indenture.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities (including as paying agent) hereunder, and to each agent, custodian and other Person employed to act hereunder.
(h) Delivery of reports, information and documents to the Trustee under Section 5.3 is for informational purposes only. The Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
(i) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(j) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.
(k) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, (i) acts of God, including earthquakes, fire and flood, (ii) terrorism, wars and other military disturbances, (iii) sabotage, epidemics and riots, (iv) interruptions, loss or malfunctions of utilities, computer (hardware or software) or communication services, (v) accidents and labor disputes and (vi) acts of civil or military authorities and governmental actions.
(l) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Securityholders pursuant to this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(m) The 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement may see fit, and, if the Trustee shall deem determine to make such further inquiry or investigation, it desirable that a matter shall be proved or established prior entitled to takingexamine the books, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any Owner Trustee kind by reason of such inquiry or any Loan Trustee;investigation.
(dn) the The Trustee may consult with counsel counsel, and the written advice or opinion of such counsel or any Opinion of Counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect of to any action taken, omitted or suffered or omitted by it hereunder in good faith and in reliance thereon;accordance with the advice or opinion of such counsel.
(eo) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the The Trustee shall not be liable with respect to for any action taken taken, suffered, or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 3 contracts
Samples: Indenture (Amerant Bancorp Inc.), Indenture (Amerant Florida Bancorp Inc.), Indenture (Amerant Bancorp Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document;
(bii) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Section 11.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the written direction of the Holders of a majority in principal amount of the outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;Certificate; and
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hvii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon the Trusteematters as it may see fit, under this Agreement; and
(i) , if the Trustee shall not be required determine to expend make such further inquiry or risk its own funds in the performance of any of its duties under this Agreementinvestigation, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment be entitled to examine the books, records and premises of such funds the Company personally or adequate indemnity against such risk is not reasonably assured to itby agent or attorney.
Appears in 3 contracts
Samples: Indenture (Dobson Communications Corp), Indenture (Dobson Communications Corp), Indenture (Dobson Wireline Co)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.01:
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, which shall conform to Section 12.05. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute gross negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney and to consult with the officers and representatives of the Issuer;
(viii) the Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(ix) the Trustee will have no duty to inquire as to the Issuer’s performance of the covenants in Article Four. In addition, the Trustee will not be deemed to have any knowledge of any Default or Event of Default or other identity of a Restricted Subsidiary or Unrestricted Subsidiary unless a Responsible Officer of the Trustee has received written notification or obtained actual knowledge.
(x) in the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken;
(xi) the permissive right of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(xii) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its rights to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(xiii) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(eb) The Trustee may request that the Trustee shall be under no obligation to exercise any Issuer deliver an Officer’s Certificate setting forth the names of the rights or powers vested in it by this Agreement individuals and/or titles of officers authorized at the Direction of any of the Certificateholders such time to take specified actions pursuant to this AgreementIndenture, unless which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such Certificateholders certificate previously delivered and not superseded.
(c) In no circumstances shall have offered to the Trustee reasonable security be liable for any indirect, special, punitive or indemnity against the costconsequential losses or damage of any kind whatsoever, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) including, but not limited to, lost profits, even if the Trustee may execute any has been advised of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, likelihood of such loss of damage and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction regardless of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place form of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itaction.
Appears in 2 contracts
Samples: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:Act Sections 315(a) through (d):
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or parties;persons.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and and/or an Opinion of Counsel Counsel, which shall conform to Section 10.04 and shall cover such other matters as provided the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on its part, rely upon an Officer's Certificate the part of the CompanyTrustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any Owner action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
(c) The Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any Loan Trustee;agent or attorney appointed with due care.
(d) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company.
(e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.07(a) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(g) The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;.
(eh) the Trustee shall be under no obligation Subject to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this AgreementSection 6.04, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for bound to make any misconduct investigation into the facts or negligence on matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or both), 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 the part Holders of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the Trust relating making of such investigation is, in the opinion of the Trustee, not reasonably assured to the timeTrustee by the security afforded to it by the terms of this Indenture, method the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding. The reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee shall be repaid by the Company upon demand.
(i) The Trustee shall not be deemed to have notice of any default or Event of Default (other than any Event of Default under Section 6.01(a), 6.01(b) or 6.01(c)) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee.
(j) The rights, privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 2 contracts
Samples: Subordinated Indenture (Wintrust Financial Corp), Subordinated Indenture (Wintrust Financial Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 4.1, including the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the pertinent books and records of the Company, personally or by agent or attorney, as may be reasonably necessary for such inquiry or investigation and in a manner so as to not unreasonably interfere with the normal business operations of the Company or any of its Affiliates; provided, however, that the Company shall not be required to provide any books or records to the extent that the provision thereof (i) would, as reasonably determined based on the advice of outside counsel, jeopardize any attorney-client privilege or (ii) would contravene any Law or any contract or agreement to which the Company or any of its Affiliates is subject or bound;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and
(i) the Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any default or Event of its duties under Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice thereof has been received by such Responsible Officer at the offices of the Trustee and such notice references the CVRs and this Agreement, or in CVR Agreement and the exercise fact that such notice constitutes notification of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itdefault.
Appears in 2 contracts
Samples: Contingent Value Rights Agreement (Cartesian Therapeutics, Inc.), Merger Agreement (Selecta Biosciences Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a1) the The Trustee may conclusively rely and shall will be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;.
(b2) any Any request or direction of the Company mentioned herein shall will be sufficiently evidenced by a written description Company Request or a Company Order (unless other evidence in respect thereof be herein specifically prescribed) and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;a Board Resolution.
(c3) whenever Whenever in the administration of this Agreement Indenture the Trustee shall will deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence will be herein specifically prescribed) may, in the absence of bad faith negligence or willful misconduct on its part, rely upon an Officer's Officers’ Certificate or Opinion of the CompanyCounsel, any Owner Trustee or any Loan Trustee;both, which will comply with Section 1.02.
(d4) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;. The Trustee may act through its attorneys and agents and will not be responsible for the willful misconduct or negligence of any agent appointed in good faith.
(e5) the The Trustee shall will be under no obligation to exercise any of the rights or powers vested in it by or under this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to Holder(s) under this AgreementIndenture, unless such Certificateholders shall Holder(s) will have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g6) The Trustee will 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee will determine to make such further inquiry or investigation, it will be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney, at the sole cost of the Company and will incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(7) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall will not be responsible for any willful misconduct or negligence on the part of any agent or attorney appointed with due care in good faith by it under this Agreement;hereunder.
(h) the 8) The Trustee shall will not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction discretion or rights or powers conferred upon it by this Indenture.
(9) In no event will the Trustee be responsible or liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating likelihood of such loss or damage and regardless of the form of action.
(10) The Trustee will not less than a majority in interest in be required to take notice or be deemed to have notice of any default or Event of Default, except failure by the Trust relating Company to pay or cause to be made any of the time, method and place of conducting any proceeding for any remedy available payments required to be made to the Trustee, unless a Responsible Officer shall receive a written notice of any event which is in fact a “default” (as defined in Section 5.03) from the Company or exercising any trust or power conferred upon by the Holders of at least 30% in aggregate principal amount of the then Outstanding Subordinated Notes delivered to the Corporate Trust Office of the Trustee and referencing the Subordinated Notes and this Indenture, and in the absence of such notice so delivered the Trustee may conclusively assume no Event of Default exists;
(11) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed or appointed to act hereunder.
(12) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions under this Agreement; andIndenture.
(i13) The Trustee shall have no responsibility for monitoring the Company’s compliance with any of its covenants under this Indenture.
(14) Any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itconstrued as a duty.
Appears in 2 contracts
Samples: Indenture (Green Bancorp, Inc.), Indenture (Green Bancorp, Inc.)
Certain Rights of Trustee. (a) Except during the continuance of an Event of Default, the Trustee undertakes to perform such functions and duties and only such functions and duties as are specifically set forth in this Indenture, and no implied duties or obligations shall be read into this Indenture against the Trustee. During the existence of an Event of Default, the Trustee shall exercise such of the rights and powers under this Indenture vested in the Trustee under this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs. No provision of this Indenture shall be construed to relieve the Trustee from its duties, except to the extent permitted by the Trust Indenture Act. Subject to the provisions of Section 315 601, whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 603.
(b) Subject to the Trust Indenture ActAct and Section 601:
(a1) in the absence of bad faith on its part, the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c3) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers’ Certificate;
(d4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(g6) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) 8) the Trustee shall not be liable charged with knowledge of any Default or Event of Default with respect to any action taken the Notes unless either (A) a Responsible Officer shall have actual knowledge of such Default or omitted to be taken by it in good faith in accordance with the Direction Event of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating Default or (2) written notice of such Default or Event of Default shall have been given to the timeTrustee by the Company, method and place any Notes Guarantor or by any Holder.
(9) No provision of conducting any proceeding this Indenture shall be construed to relieve the Trustee from liability for any remedy available its own negligent action, its own negligent failure to the Trusteeact, or exercising any trust or power conferred upon the Trusteeits own willful misconduct, under except that (A) this Agreement; and
clause (i9) the Trustee of subsection (b) of this Section 603 shall not be required construed to expend or risk its own funds in limit the performance effect of any subsection (b)(1) of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.Section 603;
Appears in 2 contracts
Samples: Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) Following the occurrence of a Default or an Event of Default, the Trustee is entitled to require all Agents to act under its direction;
(b) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless written notice of such Default or Event of Default from the Issuer or any Holder is received by a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default;
(c) The Trustee may rely conclusively, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person or partiesPersons;
(bd) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both, which shall conform to Section 10.02. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel and such Officer’s Certificate or Opinion of Counsel will be equal to complete authorization;
(e) The Trustee may execute any of the trusts or powers hereunder either directly or by or through its attorneys, custodians, nominees and agents and shall not be responsible for the misconduct or negligence or for the supervision, of any attorney, custodian, nominee or agent appointed with due care by it hereunder;
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and/or indemnity (including by an Officer's Certificate way of prefunding) satisfactory to the Trustee against any losses, liabilities and an Opinion of Counsel as provided expenses (including without limitation, attorneys’ fees and expenses) that might be incurred by the Trustee in Section 1.02 of this Agreementcompliance with such request or direction;
(cg) whenever Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of such Issuer;
(h) The Trustee (or any of its officers, directors, employees or agents) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(i) Whenever, in the administration of this Agreement Indenture, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's ’s Certificate and such matter be deemed to be conclusively proved and established by an Officer’s Certificate, and such Officer’s Certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the Company, any Owner Trustee or any Loan Trusteereliance thereof;
(dj) The 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 Trustee, in its discretion (but shall have no obligation) may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney;
(k) The Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(l) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee shall not be obligated to act upon any such directions unless and until it receives a joint instruction from such directing parties or an instruction from one party with the consent of the other;
(m) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(n) Delivery of reports, information and documents to the Trustee under Section 4.10 is for informational purposes only and the Trustee’s receipt of the foregoing will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any of its Restricted Subsidiary’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(o) The Trustee shall not be liable for interest on, or to invest, any money received by it except as the Trustee may agree in writing with the Issuer;
(p) The rights, privileges, protections, immunities and benefits given to the Trustee in this Indenture, including, without limitation, its rights to be indemnified and compensated, are extended to, and will be enforceable by, the Trustee in its capacity hereunder, by the Registrar, the Agents, and each agent, custodian and other Person employed to act hereunder;
(q) The Trustee may consult with counsel or other professional advisors and the advice of such counsel or professional advisor or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(er) the The Trustee shall be under have no obligation duty to exercise any inquire as to the performance of the rights or powers vested in it by this Agreement at the Direction of any covenants of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it Issuer and/or its Restricted Subsidiaries in compliance with such DirectionArticle Four hereof;
(gs) the The Trustee may execute shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of the trusts or powers minimum denominations imposed under this Agreement Indenture or perform under Applicable Law or regulation with respect to any duties under this Agreement either directly transfer, exchange, redemption, purchase or by or through agents or attorneysrepurchase, and the as applicable, of any interest in any Notes, but may at its sole discretion, choose to do so;
(t) The Trustee shall not be responsible or liable for any misconduct failure or negligence on delay in the part performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any agent law or attorney appointed with due care by it under this Agreement;regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics or other public health crises; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action or any other causes beyond the Trustee’s control whether or not of the same class or kind as specified above.
(hu) The Trustee shall not under any circumstance be liable for any indirect or consequential loss, special or punitive damages (including loss of business, goodwill or reputation, opportunity or profit of any kind) of the Issuer or any of its Restricted Subsidiaries even if advised of it in advance and even if foreseeable.
(v) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(w) The Trustee shall not be liable with respect to any Person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
(x) No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to Applicable Law or regulation.
(y) The Trustee may refrain from taking any action taken in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, the State of New York and may without liability (other than in respect of actions constituting willful misconduct or omitted gross negligence) do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
(z) The Trustee may assume without inquiry in the absence of actual knowledge that the Issuer is duly complying with its obligations contained in this Indenture required to be taken performed and observed by it in good faith in accordance it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.
(aa) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the Direction authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer whenever a Person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in actual sender of such Instructions and that the Trust relating Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the timeTrustee have been sent by such Authorized Officer. The Issuer shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, method and place of conducting any proceeding passwords and/or authentication keys upon receipt by the Issuer. The Trustee shall not be liable for any remedy available losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or exercising any trust or power conferred upon unauthorized use of the security procedures.
(bb) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable AML Laws”), the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, under this Agreement; and
(i) each of the parties agrees to provide to the Trustee shall not upon its request from time to time such identifying information and documentation as may be required available for such party in order to expend or risk its own funds in enable the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured Trustee to itcomply with Applicable AML Laws.
Appears in 2 contracts
Samples: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) 6.01 hereof: the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon receipt by it of any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of Indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) . The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Company; any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution; the Trustee may consult with counsel of its selection and an any advice of such counsel or any Opinion of Counsel 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 reliance thereon in accordance with such advice or Opinion of Counsel; the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities (including the reasonable fees and expenses of its agents and counsel) which might be incurred therein or thereby in compliance with such request or direction; the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture other than any liabilities arising out of the negligence or willful misconduct of the Trustee; the 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, approval, appraisal, bond, debenture, note, coupon, security or other paper or document unless requested in writing to do so by the Holders of not less than a majority in aggregate principal amount of the Securities then Outstanding; provided, the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as provided it may deem fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole reasonable cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the 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; the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by the Trustee in Section 1.02 each of its capacities hereunder and each agent, custodian and other Person employed to act hereunder; the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement;
Indenture, which certificate may be signed by any individual authorized to sign an Officers’ Certificate, including any individual specified as so authorized in any such certificate previously delivered and not superseded; in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (cincluding, but not limited to, loss or profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture; the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotages; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authorities and governmental action; The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as duties; whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and Officers’ Certificate; the Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed with due care Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by it under the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Agreement;
(h) Indenture; the Trustee shall not be liable with respect deemed to have knowledge of any action taken fact or omitted matter unless such fact or matter is actually known to be taken by it in good faith in accordance with the Direction a Responsible Officer of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in Trustee; and the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk in its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itcapacities as Paying Agent and Securities Registrar hereunder.
Appears in 2 contracts
Samples: Consent Agreement (Blyth Inc), Supplemental Indenture (Blyth Inc)
Certain Rights of Trustee. Subject to the provisions of ------------------------- Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Guarantor or a Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this AgreementRequest;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Guarantor or Applicable Company, any related Owner Trustee Trustee, any related Owner Participant or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hf) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeany resolution, method and place of conducting any proceeding for any remedy available to the Trusteecertificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or exercising any trust other paper or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.document;
Appears in 2 contracts
Samples: Pass Through Trust Agreement (Mobil Marine Finance Co I Inc), Pass Through Trust Agreement (Mobil Marine Finance Co I Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:Act Sections 315(a) through (d):
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or parties;persons.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and and/or an Opinion of Counsel Counsel, which shall conform to Section 10.04 and shall cover such other matters as provided the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on its part, rely upon an Officer's Certificate the part of the CompanyTrustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any Owner action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
(c) The Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any Loan Trustee;agent or attorney appointed with due care.
(d) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company.
(e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.07(a) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(g) The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;.
(eh) the Trustee shall be under no obligation Subject to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this AgreementSection 6.04, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for bound to make any misconduct investigation into the facts or negligence on matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, 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 the part Holders of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the Trust relating making of such investigation is, in the opinion of the Trustee, not reasonably assured to the timeTrustee by the security afforded to it by the terms of this Indenture, method the Trustee may require indemnity satisfactory to the Trustee against such expenses or liabilities as a condition to proceeding. The reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee shall be repaid by the Company upon demand.
(i) The Trustee shall not be deemed to have notice of any default or Event of Default (other than any Event of Default under Section 6.01(a) or 6.01(b)) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee.
(j) The rights, privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 2 contracts
Samples: Subordinated Indenture (Old Line Bancshares Inc), Subordinated Indenture (Howard Bancorp Inc)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act4.01:
(a) the The Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, written statement, instrument, opinion, report, notice, request, directioninstruction, consent, order, bond, debenture direction or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith reliance thereon and in reliance thereoncompliance therewith, absent bad faith, negligence or willful misconduct on the part of the Trustee;
(ec) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction of any request or direction of the Certificateholders Agent or the Required Banks pursuant to this AgreementIndenture, unless such Certificateholders the Agent or the Required Banks shall have offered to the Trustee reasonable security or indemnity against the cost, costs and expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(gd) The Trustee shall not be bound to make any investigation into the facts or matters stated in any statement, instrument, notice, request, direction or other paper or document referred to in paragraph (a) of this Section;
(e) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or the negligence on the part of any attorney or agent or attorney appointed by the Indenture Trustee with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreementcare; and
(if) Should the Trustee receive written Instructions from the Agent or the Required Banks which the Trustee, in its sole opinion, believes to be conflicting Instructions, the Trustee shall not be required have no duty to expend act thereon, but if indemnified to its satisfaction for any costs, expenses or risk liabilities it may incur, it shall seek instructions concerning its own funds in the performance of any of its duties responsibilities under this Agreement, or in the exercise Indenture with respect to such conflicting Instructions from any court of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itcompetent jurisdiction.
Appears in 2 contracts
Samples: Indenture of Trust (Reading & Bates Corp), Indenture of Trust (Reading & Bates Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document 43 -38- believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 2 contracts
Samples: Pass Through Trust Agreement (America West Airlines Inc), Pass Through Trust Agreement (America West Airlines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02 hereof, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii) hereof, the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 2 contracts
Samples: Indenture (Helix Energy Solutions Group Inc), Indenture (Brigham Exploration Co)
Certain Rights of Trustee. Subject to the provisions of Section 315 3.1, including the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company Parent mentioned herein shall be sufficiently evidenced by a written description Parent Request or Parent Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or willful misconduct on its part, rely upon an Officer's ’s Certificate of and the Company, Trustee shall not be liable for any Owner Trustee action it takes or any Loan Trusteeomits to take in good faith reliance thereon;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of Parent, personally or by agent or attorney, as reasonably necessary for such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 2 contracts
Samples: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC)
Certain Rights of Trustee. Subject to the provisions of Section 315 4.1, including the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the pertinent books and records of the Company, personally or by agent or attorney, as may be reasonably necessary for such inquiry or investigation and in a manner so as to not unreasonably interfere with the normal business operations of the Company or any of its Affiliates; provided, however, that Company shall not be required to provide any books or records to the extent that the provision thereof (i) would, as reasonably determined based on the advice of outside counsel, jeopardize any attorney-client privilege or (ii) would contravene any Law or any contract or agreement to which the Company or any of its Affiliates is subject or bound;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and reasonably believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and
(i) the Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any default or Event of its duties under Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice thereof has been received by such Responsible Officer at the offices of the Trustee and such notice references the CVRs and this Agreement, or in CVR Agreement and the exercise fact that such notice constitutes notification of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itdefault.
Appears in 2 contracts
Samples: Contingent Value Rights Agreement (Celgene Corp /De/), Contingent Value Rights Agreement (Bristol Myers Squibb Co)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02 hereof, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii) hereof, the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand to each Agent, custodian and other Person employed to act hereunder.
(ij) In no event shall the Trustee shall not be required to expend responsible or risk its own funds liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties under this Agreementcontrol, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured banking industry to itresume performance as soon as practicable under the circumstances.
Appears in 2 contracts
Samples: Indenture (Brigham Exploration Co), Indenture (Brigham Exploration Co)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.1:
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting (except in connection with the original issuance of the Notes on the date hereof), it may require an Officer’s Certificate or an Opinion of Counsel, or both, which shall conform to Section 12.5. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with the advice or opinion of such counsel;
(eix) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreementrights, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costprivileges, expenses protections, immunities and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(ix) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(xi) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to prevent any failure or delay in the performance of its duties obligations and to resume performance as soon as practicable under this Agreementthe circumstances; and
(xii) in no event shall the Trustee be responsible or liable for special, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against damage and regardless of the form of action.
(b) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals or titles of officers authorized at such risk is time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 2 contracts
Samples: Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act7.01:
(ai) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, Officers' Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or partiespersons;
(bii) any request before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers' Certificate and and/or an Opinion of Counsel as provided Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its partattorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care;
(iv) any request, rely upon direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer's Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company, any Owner Trustee or any Loan Trustee;
(dv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hviii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any trust kind by reason of such inquiry or power conferred upon the Trustee, under this Agreement; andinvestigation;
(iix) the Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(x) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its duties under capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this AgreementIndenture, or which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 2 contracts
Samples: Junior Subordinated Indenture (Choice One Communications Inc), Senior Subordinated Indenture (Choice One Communications Inc)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act6.1:
(a) the Collateral Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company Issuer or the Co-Issuer mentioned herein shall be sufficiently evidenced by a written description of an Issuer Request or Issuer Order, as the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementcase may be;
(c) whenever in the administration of this Agreement Indenture the Collateral Trustee shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Collateral Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate ’s certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Collateral Trustee may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the Companytype being valued, any Owner Trustee or any Loan Trusteesecurities quotation services, loan pricing services and loan valuation agents;
(d) as a condition to the taking or omitting of any action by it hereunder, the Collateral Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in reliance thereon;
(e) the Collateral Trustee shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered provided to the Collateral Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such Directionrequest or direction;
(f) the Collateral 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, note or other paper or document, but the Collateral Trustee, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Collateral Trustee shall be entitled, on reasonable prior notice to the Issuers and the Collateral Manager, to examine the books and records relating to the Secured Debt, the Subordinated Securities and the Assets, personally or by agent or attorney, during the Issuers’ or the Collateral Manager’s normal business hours; provided that the Collateral Trustee shall, and shall cause its agents to, hold in confidence all such information, except (i) to the extent disclosure may be required by law by any regulatory, administrative or governmental authority and (ii) to the extent that the Collateral Trustee, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided further that the Collateral Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder;
(g) the Collateral Trustee may execute any of the trusts or powers hereunder or under this the Credit Agreement or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, and ; provided that the Collateral Trustee shall not be responsible for any misconduct or negligence on the part of any agent appointed or attorney appointed appointed, with due care by it under this Agreementhereunder;
(h) the Collateral Trustee shall not be liable with respect to for any action taken it takes or omitted omits to be taken by it take in good faith in accordance with that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; andCollateral Manager;
(i) nothing herein shall be construed to impose an obligation on the part of the Collateral Trustee to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Issuer, the Co-Issuer or Collateral Manager (unless and except to the extent otherwise expressly set forth herein or in the Collateral Administration Agreement);
(j) to the extent any defined term hereunder, or any calculation required to be made or determined by the Collateral Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles (as in effect in the United States) (“GAAP”), the Collateral Trustee shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants identified in the Accountants’ Report (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Issuer) as to the application of GAAP in such connection, in any instance;
(k) the Collateral Trustee shall not be liable for the actions or omissions of, or any inaccuracies in the records of, the Collateral Manager, the Issuer, the Co-Issuer, any Paying Agent (other than the Collateral Trustee), DTC, Euroclear, Clearstream, or any other clearing agency or depository and without limiting the foregoing, the Collateral Trustee shall not be under any obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof or of the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Collateral Trustee from the Collateral Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Assets;
(l) notwithstanding any term hereof (or any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, none of the Collateral Trustee, the Custodian or the Securities Intermediary shall be under a duty or obligation in connection with the acquisition or Grant by the Issuer to the Collateral Trustee of any item constituting the Assets, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Issuers in connection with its Grant or otherwise, or in that regard to examine any Underlying Document, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets;
(m) in the event the Bank is also acting in the capacity of Paying Agent, Registrar, Transfer Agent, Loan Agent, Custodian, Calculation Agent, Collateral Administrator or Securities Intermediary, the rights, protections, benefits, immunities and indemnities afforded to the Collateral Trustee pursuant to this Article VI or the Credit Agreement shall also be afforded to the Bank acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to any rights, immunities and indemnities provided in the Securities Account Control Agreement, the Collateral Administration Agreement or any other documents to which the Bank in such capacity is a party;
(n) any permissive right of the Collateral Trustee to take or refrain from taking actions enumerated herein or in the Credit Agreement shall not be construed as a duty;
(o) to the extent permitted by applicable law, the Collateral Trustee shall not be required to expend give any bond or risk surety in respect of the execution of this Indenture or otherwise;
(p) except as otherwise provided herein, the Collateral Trustee shall not be deemed to have notice or knowledge of any matter unless a Trust Officer has actual knowledge thereof or unless written notice thereof is received by the Collateral Trustee at the Corporate Trust Office and such notice references the Secured Debt and the Subordinated Securities generally, the Issuer or this Indenture. Whenever reference is made herein to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Collateral Trustee is concerned, be construed to refer only to a Default or an Event of Default of which the Collateral Trustee is deemed to have knowledge in accordance with this paragraph;
(q) the Collateral Trustee shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communications services);
(r) to help fight the funding of terrorism and money laundering activities, the Collateral Trustee will obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Collateral Trustee. The Collateral Trustee will ask for the name, address, tax identification number and other information that will allow the Collateral Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Collateral Trustee may also ask for formation documents such as organizational documents, an offering memorandum, or other identifying documents to be provided;
(s) in making or disposing of any investment permitted by this Indenture, the Collateral Trustee is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a subagent of the Collateral Trustee or for any third party or dealing as principal for its own funds in account. If otherwise qualified, obligations of the performance of Bank or any of its duties Affiliates shall qualify as Eligible Investments hereunder;
(t) the Collateral Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Collateral Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or subcustodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under Section 6.7 of this AgreementIndenture; and
(u) notwithstanding anything to the contrary in this Indenture, the Collateral Trustee shall have no duty (i) to see to any recording, filing, or in depositing of this Indenture or any supplemental indenture or any financing statement or continuation statement evidencing a security interest, or to see to the exercise maintenance of any such recording, filing or depositing or to any rerecording, refiling or redepositing of its rights any thereof or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured (ii) to itmaintain any insurance.
Appears in 2 contracts
Samples: Supplemental Indenture (Owl Rock Capital Corp), Indenture and Security Agreement (Owl Rock Capital Corp)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.01:
(a) the Trustee may in good faith conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note or other obligation, paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request, an Issuer Order, or any writing executed by a written description duly authorized officer of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this AgreementIssuer;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith faith, negligence or willful misconduct on its part, reasonably request and conclusively rely upon an Officer's ’s Certificate of the Company, any Owner Trustee Servicer or any Loan Trusteethe Issuer;
(d) the Trustee may consult with counsel selected by it with due care and familiar with such matters and the written advice or opinion of such counsel or any Opinion of Counsel (in form and substance satisfactory to the Trustee and addressed to the Trustee) shall be full and complete authorization and protection and the Trustee shall not be liable in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee may, at any time during the administration of this Indenture, request and receive a written direction from the Control Party in connection with actions to be taken in its capacity as Trustee and shall not be liable for any action taken or omitted in good faith reliance thereon;
(f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture which are exercisable at the Direction request or direction of any of the Certificateholders Noteholders or the Control Party pursuant to this AgreementIndenture, unless such Certificateholders shall have offered to if it has reasonable grounds for believing that repayment of the Trustee reasonable security or indemnity against the costcosts, expenses (including legal fees and expenses) and liabilities which might be incurred by it in compliance with such Directionrequest or direction is not assured to it without an indemnity reasonably satisfactory to it against such cost, expense or liability;
(g) the 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, approval, entitlement, bond, note or other paper or document, unless requested in writing to do so by the Control Party; provided, however, that the Trustee shall be under no obligation to make such investigation if it has reasonable grounds for believing that repayment of any cost, expense or liability likely to be incurred in making such investigation is not assured to it without an indemnity reasonably satisfactory to it against such cost, expense or liability, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, upon reasonable notice and at reasonable times personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers under this Agreement hereunder (including, for the avoidance of doubt, its duties with respect to the Auction Call Redemption) or perform any duties under this Agreement hereunder, either directly or by or through agents agents, custodians, nominees or attorneys, and attorneys provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreementcare; and
(i) except as otherwise agreed in writing, the Trustee shall not be required to expend or risk its own funds in responsible for the performance payment of any of its duties interest on amounts deposited with it hereunder. Notwithstanding the foregoing, nothing in this Indenture or the Servicing Agreement or any other Transaction Document regarding the Trustee shall limit the Back-up Servicer’s obligations under this AgreementIndenture or the Servicing Agreement or any other Transaction Document, or in which shall be governed by the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itrespective agreement.
Appears in 2 contracts
Samples: Indenture (Resource America, Inc.), Indenture (Resource America, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document and may in good faith conclusively rely as to the truth of the statements and the correctness of the opinions therein;
(bii) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate, opinion and/or an accountants' certificate;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture, provided that the Trustee's conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hvii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon matters as it may see fit, and, if the TrusteeTrustee shall determine to make such further inquiry or investigation, under this Agreementit shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney; and
(iviii) any request or direction of the Trustee Company mentioned herein shall not be required to expend or risk its own funds in sufficiently evidenced by a Company Order and any resolution of the performance Board of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itDirectors may be sufficiently evidenced by a Board Resolution.
Appears in 2 contracts
Samples: Indenture (Ipc Information Systems Inc), Indenture (Ipc Information Systems Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) Following the occurrence of a Default or an Event of Default, the Trustee is entitled to require all Agents to act under its direction;
(b) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless written notice of such Default or Event of Default from the Issuer or any Holder is received by a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. In the absence of receipt of such notice, the Trustee may conclusively assume that there is no Default or Event of Default;
(c) The Trustee may rely conclusively, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person or partiesPersons;
(bd) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both, which shall conform to Section 11.02. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel and such Officer’s Certificate or Opinion of Counsel will be equal to complete authorization;
(e) The Trustee may execute any of the trusts or powers hereunder either directly or by or through its attorneys, custodians, nominees and agents and shall not be responsible for the misconduct or negligence or for the supervision, of any attorney, custodian, nominee or agent appointed with due care by it hereunder;
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and/or indemnity (including by an Officer's Certificate way of pre-funding) satisfactory to the Trustee against any losses, liabilities and an Opinion of Counsel as provided expenses (including without limitation, attorneys’ fees and expenses) that might be incurred by the Trustee in Section 1.02 of this Agreementcompliance with such request or direction;
(cg) whenever Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of such Issuer;
(h) The Trustee (or any of its officers, directors, employees or agents) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(i) Whenever, in the administration of this Agreement Indenture, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's ’s Certificate and such matter be deemed to be conclusively proved and established by an Officer’s Certificate, and such Officer’s Certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the Company, any Owner Trustee or any Loan Trusteereliance thereof;
(dj) The 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 Trustee, in its discretion (but shall have no obligation) may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney;
(k) The Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(l) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee shall not be obligated to act upon any such directions unless and until it receives a joint instruction from such directing parties or an instruction from one party with the consent of the other;
(m) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(n) Delivery of reports, information and documents to the Trustee under Section 4.11 is for informational purposes only and the Trustee’s receipt of the foregoing will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any of its Subsidiary’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(o) The Trustee shall not be liable for interest on, or to invest, any money received by it except as the Trustee may agree in writing with the Issuer;
(p) The rights, privileges, protections, immunities and benefits given to the Trustee in this Indenture, including, without limitation, its rights to be indemnified and compensated, are extended to, and will be enforceable by, the Trustee in its capacity hereunder, by the Registrar, the Agents, and each agent, custodian and other Person employed to act hereunder;
(q) The Trustee may consult with counsel or other professional advisors and the advice of such counsel or professional advisor or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(er) the The Trustee shall be under have no obligation duty to exercise any inquire as to the performance of the rights or powers vested in it by this Agreement at the Direction of any covenants of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it Issuer and/or its Subsidiaries in compliance with such DirectionArticle Four hereof;
(gs) the The Trustee may execute shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of the trusts or powers minimum denominations imposed under this Agreement Indenture or perform under Applicable Law or regulation with respect to any duties under this Agreement either directly transfer, exchange, redemption, purchase or by or through agents or attorneysrepurchase, and the as applicable, of any interest in any Notes, but may at its sole discretion, choose to do so;
(t) The Trustee shall not be responsible or liable for any misconduct failure or negligence on delay in the part performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any agent law or attorney appointed with due care by it under this Agreement;regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics or other public health crises; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action or any other causes beyond the Trustee’s control whether or not of the same class or kind as specified above.
(hu) The Trustee shall not under any circumstance be liable for any indirect or consequential loss, special or punitive damages (including loss of business, goodwill or reputation, opportunity or profit of any kind) of the Issuer or any of its Subsidiaries even if advised of it in advance and even if foreseeable.
(v) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(w) The Trustee shall not be liable with respect to any Person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
(x) No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to Applicable Law or regulation.
(y) The Trustee may refrain from taking any action taken in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, the State of New York and may without liability (other than in respect of actions constituting willful misconduct or omitted gross negligence) do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
(z) The Trustee may assume without inquiry in the absence of actual knowledge that the Issuer is duly complying with its obligations contained in this Indenture required to be taken performed and observed by it in good faith in accordance it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.
(aa) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the Direction authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer whenever a Person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in actual sender of such Instructions and that the Trust relating Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the timeTrustee have been sent by such Authorized Officer. The Issuer shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, method and place of conducting any proceeding passwords and/or authentication keys upon receipt by the Issuer. The Trustee shall not be liable for any remedy available losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or exercising any trust or power conferred upon unauthorized use of the security procedures.
(bb) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable AML Laws”), the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, under this Agreement; and
(i) each of the parties agrees to provide to the Trustee shall not upon its request from time to time such identifying information and documentation as may be required available for such party in order to expend or risk its own funds in enable the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured Trustee to itcomply with Applicable AML Laws.
Appears in 2 contracts
Samples: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers’ Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed with due care by it under this Agreement;
(h) Event of Default unless a Responsible Officer of the Trustee shall not be liable with respect has actual knowledge thereof or unless written notice of such event is sent to any action taken or omitted to be taken by it in good faith the Trustee in accordance with Section 12.02 hereof, and such notice references the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itNotes.
Appears in 2 contracts
Samples: Indenture (Integrated Alarm Services Group Inc), Indenture (Protection One Alarm Monitoring Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may rely rely, and shall will be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document, but, in the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided conforming to Section 12.04 and the Trustee will not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;good faith in reliance on the certificate or opinion.
(c) whenever in The Trustee may act through its attorneys and agents and will not be responsible for the administration misconduct or negligence of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;agent appointed with due care.
(d) the The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall will be under no obligation to exercise any of the rights or powers vested in it by this Agreement the Indenture at the Direction request or direction of any of the Certificateholders pursuant to this AgreementHolders, unless such Certificateholders shall Holders have offered to the Trustee reasonable security or and/or indemnity satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(ge) the The Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall will not be liable with respect to for any action taken it takes or omitted omits to be taken by it take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority Holders in interest in the Trust accordance with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; andthe Indenture.
(if) The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(g) No provision of the Indenture will require the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreementhereunder, or in the exercise of any of its rights or powers, if unless it receives indemnity and/or security satisfactory to it against any loss, liability or expense.
(h) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes unless either (i) a responsible officer of the Trustee assigned to the Corporate Trust Department of the Trustee (or any successor division or department of the Trustee) with direct responsibility for the administration of the Indenture shall have reasonable grounds for believing that repayment actual knowledge of such funds Default or adequate indemnity against Event of Default or (ii) written notice of such risk is Default or Event of Default shall have been given to the Trustee with direct responsibility for the administration of the Indenture at its Corporate Trust Office by the Company or any other obligor on the Notes or by any Holder of the Notes, such notice specifically identifying the Indenture and the Notes.
(i) The Trustee shall not reasonably assured be liable for any action taken, suffered or omitted by it in good faith and believed by it to itbe authorized or within the discretion or rights or powers conferred upon it by the Indenture.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and other Person employed to act hereunder.
(k) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be responsible for, or makes any representation as to, the existence, genuineness, value or protection of any Collateral, for the legality, effectiveness or sufficiency of any Security Document, or for the creation, perfection, priority, sufficiency or protection of any Liens securing the Notes.
Appears in 2 contracts
Samples: Indenture (GeoPark LTD), Indenture (GeoPark Holdings LTD)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.01:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture security or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;.
(b) any request Any request, direction, order or direction demand of the Company or the Guarantor mentioned herein shall be sufficiently evidenced by a written description Board Resolution or an instrument signed in the name of the subject matter thereof accompanied Company or the Guarantor, as applicable, by an Officer's Certificate and an Opinion of Counsel as provided Officer (unless other evidence in Section 1.02 of this Agreement;respect thereof is specifically prescribed herein).
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, taken or suffered or omitted by it hereunder in good faith and in reliance thereon;.
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request, order or direction of any of the Certificateholders Securityholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Securityholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which might that may be incurred therein or thereby.
(e) The Trustee shall not be liable for any action taken or omitted to be taken by it in compliance with good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, provided, however, that the Trustee’s conduct does not constitute willful misconduct, bad faith or negligence.
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other papers or documents, but the Trustee, in its discretion, may make such Direction;further inquiry into such matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable notice and at reasonable times to examine the books, records and premises of the Company or the Guarantor, personally or by agent or attorney at the sole cost of the Company or the Guarantor and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee.
(h) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(hi) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeThe rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ij) The Trustee may request that the Company or the Guarantor deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. In no event shall the Trustee shall not be required to expend responsible or risk its own funds in the performance liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its duties under this Agreement, or in profit) irrespective of whether the exercise Trustee has been advised of any of its rights or powers, if it shall have reasonable grounds for believing that repayment the likelihood of such funds loss or adequate indemnity against such risk is not reasonably assured to itdamage and regardless of the form of action.
Appears in 2 contracts
Samples: Indenture (Thermo Fisher Scientific Inc.), Indenture (Thermo Fisher Scientific (Finance I) B.V.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein;
(b) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description an Issuer Request or Issuer Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, may require and rely upon an Officer's ’s Certificate or an Opinion of Counsel or both and the Company, Trustee shall not be liable for any Owner Trustee action it takes or any Loan Trusteeomits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(d) the Trustee may consult with counsel or other professionals of its selection and the advice of such counsel or other professionals retained or consulted by the Trustee or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee may act through counsel, agents, custodians and nominees and shall not be responsible for the acts or omissions or for the misconduct or negligence of any such person appointed with due care and in good faith;
(f) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and, with respect to such permissive rights, the Trustee shall not be answerable for other than its gross negligence or willful misconduct;
(g) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it in its sole discretion against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts request or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementdirection;
(h) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any trust kind by reason of such inquiry or power conferred upon the Trustee, under this Agreement; andinvestigation;
(i) the Trustee shall not be required liable for any action taken, suffered or omitted by it in good faith and believed by it to expend be authorized or risk within the discretion or rights or powers conferred upon it by this Indenture;
(j) the rights, privileges, protections, indemnities, immunities and benefits given to the Trustee, including, without limitation, its own funds right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, including without limitation as Collateral Agent, and each agent, custodian and other person employed to act hereunder;
(k) the performance Trustee may request that the Issuer deliver an Officer’s Certificate in substantially the form of Exhibit A hereto setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(l) in no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its duties under this Agreement, profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or in damage and regardless of the exercise form of action; and
(m) the Trustee shall not be deemed to have notice of any Default or Event of its rights or powersDefault unless a Responsible Officer of the Trustee has received written notice of any event which is in fact such a default at the Corporate Trust Office of the Trustee, if it shall have reasonable grounds for believing that repayment of and such funds or adequate indemnity against such risk is not reasonably assured to itnotice references the Notes and this Indenture.
Appears in 2 contracts
Samples: Indenture (Qwest Corp), Indenture (Qwest Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, affidavit, certificate, Officers’ Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or partiespersons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(b) any request before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and and/or an Opinion of Counsel Counsel, which shall conform to Section 11.04 and shall cover such other matters as provided the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on its part, rely upon an Officer's Certificate the part of the CompanyTrustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any Owner action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any Loan Trusteeagent or attorney appointed with due care;
(d) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith at the direction of the Holders of not less than a majority in principal amount of the Securities as to the time, method, and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by the documents;
(f) any action taken, or omitted to be taken, by the Trustee in good faith pursuant to the documents upon the request or authority or consent of any person who, at the time of making such request or giving such authority or consent, is the Holder of any Security shall be conclusive and binding upon all future Holders of Securities and upon Securities executed and delivered in exchange therefore or in place thereof;
(g) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(h) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(i) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(ej) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in the Indenture and shall not be under no obligation bound to exercise make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal amount of the rights or powers vested in it by this Agreement at Securities of all series affected then outstanding; provided that, if the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered payment within a reasonable time to the Trustee reasonable security or indemnity against of the costcosts, expenses and or liabilities which might likely to be incurred by it in compliance with the making of such Directioninvestigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding;
(gk) in no event shall the Trustee may execute be responsible or liable for special, indirect, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the trusts likelihood of such loss or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, damage and regardless of the Trustee shall not be responsible for any misconduct or negligence on the part form of any agent or attorney appointed with due care by it under this Agreementaction;
(hl) the Trustee shall not be liable with respect deemed to have notice of any action taken Default or omitted to be taken by it in good faith in accordance with the Direction Event of Default unless a Responsible Officer of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a majority in interest in default is received by the Trustee at the Corporate Trust relating to Office of the timeTrustee, method and place of conducting any proceeding for any remedy available such notice references the Securities and this Indenture;
(m) the rights, privileges, protections, immunities and benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(in) the Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of its powers and duties hereunder;
(o) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized to take specified actions pursuant to this Indenture;
(p) during the existence of any Event of Default (which has not been cured), the Trustee shall exercise the rights, duties and powers vested in it with the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of their own affairs;
(q) the Trustee shall not be answerable for other than its negligence or willful misconduct;
(r) the Trustee shall not be liable for an error of judgment made in good faith, unless it has been proven that the Trustee was negligent in ascertaining the pertinent facts;
(s) the Trustee undertakes to perform only such duties as are specifically set forth in the Indenture, and no implied duties shall be read into the Indenture against the Trustee; and
(t) the Trustee shall not be required to take notice or be deemed to have notice of any Event of Default, except failure to receive any of its duties under this Agreementthe payments required to be made to the Trustee, unless the Trustee shall be specifically notified in writing by the Company or by the Holders of at least 25% in aggregate principal amount of the Securities, and in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment absence of such funds or adequate indemnity against such risk is not reasonably assured to itnotice the Trustee may conclusively assume no default exists.
Appears in 2 contracts
Samples: Senior Notes Indenture (Trinity Industries Inc), Senior Notes Indenture (Trinity Parts & Components, LLC)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company Partnership or a Guarantor mentioned herein shall be sufficiently evidenced by a written description Partnership Request or Partnership Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be entitled to receive and may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Partnership, personally or by agent or attorney at the sole cost of the Partnership and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder and shall not be responsible for the supervision of officers and employees of such agents or attorneys;
(h) the Trustee may request that the Partnership and, if applicable, the Guarantors deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(k) anything in this Indenture notwithstanding, in no event shall the Trustee be liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Partnership has been advised as to the likelihood of such loss or damage and regardless of the form of action; and
(l) the Trustee shall not be liable with respect to for any action taken taken, suffered, or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 2 contracts
Samples: Indenture (Cheniere Energy Partners, L.P.), Indenture (Cheniere Energy Partners, L.P.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document and may in good faith conclusively rely as to the truth of the statements and the correctness of the opinions therein;
(bii) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate, opinion and/or an accountants' certificate;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or the Security Documents at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; provided, however, that the Trustee's conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter fact or circumstance be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeCertificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hvii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon matters as it may see fit, and, if the TrusteeTrustee shall determine to make such further inquiry or investigation, under this Agreementit shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney; and
(iviii) any request or direction of the Trustee Company mentioned herein shall not be required to expend or risk its own funds in sufficiently evidenced by a written Company Order and any resolution of the performance Board of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itDirectors may be sufficiently evidenced by a written Board Resolution.
Appears in 2 contracts
Samples: Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc), Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting either Co-Obligor shall be sufficient if signed by an Officer of such Co-Obligor.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 13.02 hereof, and such notice references the Notes.
(h) Subject to Section 7.01(b)(ii) hereof, the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement may see fit, and, if the Trustee shall deem determine to make such further inquiry or investigation, it desirable that a matter shall be proved or established prior entitled to takingexamine the books, suffering or omitting any action hereunderrecords, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate and premises of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly personally or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care at the sole cost of the Company and shall incur no liability or additional liability of any kind by it under this Agreement;reasons of such inquiry or investigation.
(hi) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeThe rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 2 contracts
Samples: Indenture (Duane Reade Inc), Indenture (Duane Reade)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely on, and shall be fully protected in acting or refraining from acting in reliance upon relying upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or parties;matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to analyze such reports or statements to determine compliance with covenants or other obligations of the Company.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided Counsel. The Trustee shall be protected and shall not be liable for any action it takes or omits to take in Section 1.02 good faith in reliance on such Officers’ Certificate or Opinion of this Agreement;Counsel.
(c) whenever in Subject to the administration provisions of this Agreement Section 7.01(c), the Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence it takes or omits to take in good faith which it believes to be herein specifically prescribed) may, in the absence of bad faith on authorized or within its part, rely upon an Officer's Certificate of the Company, any Owner Trustee rights or any Loan Trustee;powers.
(d) the The Trustee may consult with counsel counsel, investment bankers, accountants or other professionals of its selection and the advice of such counsel counsel, investment bankers, accountants or other professionals or any Opinion of Counsel 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 reliance thereon;thereon in accordance with such advice or Opinion of Counsel.
(e) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Direction;request or direction.
(gf) the The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible or liable for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(hg) the The Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted matters stated in any resolution, Officers’ Certificate or other certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document unless requested in writing so to be taken do by it in good faith in accordance with the Direction Holders of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest aggregate principal amount of the outstanding Notes; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the Trust relating to making of such investigation, in the time, method and place opinion of conducting any proceeding for any remedy available to the Trustee, is not assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or exercising any trust or power conferred upon the Trustee, under this Agreement; andliabilities as a condition to proceeding.
(ih) the The Trustee shall not be required to expend give any bond or risk surety in respect of the performance of its own funds powers and duties hereunder.
(i) The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Company, except as otherwise set forth herein, but the Trustee may require of the Company full information and advice as to the performance of the covenants, conditions and agreements contained herein and shall be entitled in connection herewith to examine the books, records and premises of the Company.
(j) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and the Trustee shall not be answerable for other than its negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction.
(k) Except for (i) a default under Section 6.01(a)(1) or (2), provided that the Trustee is also the Paying Agent or (ii) any other event of which a Responsible Officer of the Trustee has actual knowledge and which event, with the giving of notice or the passage of time or both, would constitute an Event of Default under this Indenture, the Trustee shall not be deemed to have notice of any default or event unless specifically notified in writing of such event by the Company or the Holders of not less than 25% in aggregate principal amount of the Notes, such notice referencing the Notes and this Indenture. The Trustee shall not be deemed to have notice of any Covenant Suspension Event, Suspension Date or Reversion Date unless notified thereof in writing by the Company.
(l) In no event shall the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(m) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(n) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties under this Agreementcontrol, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured banking industry to itresume performance as soon as practicable under the circumstances.
Appears in 2 contracts
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have furnished to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits) for any action it takes or omits to take, even if the Trustee has been advised of the likelihood of such loss or damage.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) Subject to Section 7.01(b)(2), the 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;may see fit.
(bi) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate The rights, privileges, protections, immunities and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon the Trusteeincluding, under this Agreement; and
(i) without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee shall not be required to expend or risk its own funds in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured custodian and other Person employed to itact hereunder.
Appears in 2 contracts
Samples: Indenture (Ultra Petroleum Corp), Indenture (Ultra Petroleum Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein in this Indenture shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering suffering, or omitting any action hereunderunder this Indenture, the Trustee (unless other evidence be herein specifically prescribedprescribed in this Indenture) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers’ Certificate;
(d) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder under this Indenture in good faith and in reliance thereonon such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costcosts, expenses expenses, and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records, and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement Indenture either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementit;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered, or omitted to be taken by it in good faith in accordance with that is believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this Agreement; andIndenture;
(i) the Trustee shall not be required charged with knowledge of any default or Event of Default with respect to expend the Securities unless written notice of such default or risk Event of Default shall have been given to a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture;
(j) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its own funds right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(l) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(m) anything in this Indenture notwithstanding, in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action;
(n) the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, (i) any act or provision of present or future law or regulation or governmental authority, (ii) labor disputes, strikes or work stoppages, (iii) accidents, (iv) acts of war or terrorism, (v) civil or military disturbances or unrest, (vi) nuclear or natural catastrophes or acts of God, (vii) epidemics or pandemics, (viii) disease, (ix) quarantine, (x) national emergency, (xi) interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, (xii) communications system failure, (xiii) malware or ransomware, (xiv) the unavailability of the Federal Reserve Bank wire, telex or other communication or wire facility, or (xv) unavailability of any securities clearing system; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(o) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities;
(p) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and
(q) no provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to take or omit to take any action, in the performance of its duties or obligations under this AgreementIndenture, or in to exercise any right or power thereunder, to the exercise of any of its rights extent that taking or powers, if it shall have reasonable grounds for believing that repayment of omitting to take such funds or adequate indemnity against such risk is not reasonably assured to action would violate applicable law binding upon it.
Appears in 2 contracts
Samples: Indenture (Valley National Bancorp), Indenture (Valley National Bancorp)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.1:
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting (except in connection with the original issuance of the Notes on the date hereof), it may require an Officer’s Certificate or an Opinion of Counsel, or both, which shall conform to Section 12.5. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonupon the advice or opinion of such counsel;
(eix) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreementrights, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costprivileges, expenses protections, immunities and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(ix) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(xi) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to prevent any failure or delay in the performance of its duties obligations and to resume performance as soon as practicable under this Agreementthe circumstances; and
(xii) in no event shall the Trustee be responsible or liable for punitive, special, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against damage and regardless of the form of action.
(b) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals or titles of officers authorized at such risk is time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 2 contracts
Samples: Indenture (Sealed Air Corp/De), Indenture (Sealed Air Corp/De)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.01:
(a) the Trustee may in good faith conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note or other obligation, paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request, an Issuer Order, or any writing executed by a written description duly authorized officer of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this AgreementIssuer;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith faith, negligence or willful misconduct on its part, reasonably request and conclusively rely upon an Officer's ’s Certificate of the Company, any Owner Trustee Servicer or any Loan Trusteethe Issuer;
(d) the Trustee may consult with counsel selected by it with due care and familiar with such matters and the written advice or opinion of such counsel or any Opinion of Counsel (in form and substance satisfactory to the Trustee and addressed to the Trustee) shall be full and complete authorization and protection and the Trustee shall not be liable in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee may, at any time during the administration of this Indenture, request and receive a written direction from the Control Party in connection with actions to be taken in its capacity as Trustee and shall not be liable for any action taken or omitted in good faith reliance thereon;
(f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture which are exercisable at the Direction request or direction of any of the Certificateholders Noteholders or the Control Party pursuant to this AgreementIndenture, unless such Certificateholders shall have offered to if it has reasonable grounds for believing that repayment of the Trustee reasonable security or indemnity against the costcosts, expenses (including legal fees and expenses) and liabilities which might be incurred by it in compliance with such Directionrequest or direction is not assured to it without an indemnity reasonably satisfactory to it against such cost, expense or liability;
(g) the 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, approval, entitlement, bond, note or other paper or document, unless requested in writing to do so by the Control Party; provided, however, that the Trustee shall be under no obligation to make such investigation if it has reasonable grounds for believing that repayment of any cost, expense or liability likely to be incurred in making such investigation is not assured to it without an indemnity reasonably satisfactory to it against such cost, expense or liability, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, upon reasonable notice and at reasonable times personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder (including, for the avoidance of doubt, its duties with respect to the Auction Call Redemption), either directly or by or through agents agents, custodians, nominees or attorneys, and attorneys provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreementcare; and
(i) except as otherwise agreed in writing, the Trustee shall not be required to expend or risk its own funds in responsible for the performance payment of any of its duties interest on amounts deposited with it hereunder. Notwithstanding the foregoing, nothing in this Indenture or the Servicing Agreement or any other Transaction Document regarding the Trustee shall limit the Back-up Servicer’s obligations under this AgreementIndenture or the Servicing Agreement or any other Transaction Document, or in which shall be governed by the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itrespective agreement.
Appears in 2 contracts
Samples: Indenture (LEAF Equipment Finance Fund 4, L.P.), Indenture (LEAF Equipment Finance Fund 4, L.P.)
Certain Rights of Trustee. Subject (1) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the provisions of Section 315 truth of the Trust Indenture Actstatements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein.
(3) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(a) this paragraph (3) does not limit the effect of paragraphs (1) and (2) of this Section 6.1;
(b) (the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.12; and
(d) The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (1), (2) and (3) of this Section 6.1.
(4) The Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;.
(b5) any Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order (other than delivery of any Note, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.3 which shall be sufficiently evidenced as provided therein) and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;a Board Resolution.
(c6) whenever Whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a Board Resolution, an Officer's Certificate Opinion of the Company, any Owner Trustee Counsel or any Loan Trustee;an Officers' Certificate.
(d7) the The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;.
(e) the 8) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders of Notes of any series or any related Coupons pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Direction;request or direction.
(g9) The 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, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney.
(10) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(h11) the The Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this Agreement; andIndenture.
(i12) the The Trustee shall not be required to expend or risk its own funds in the performance charged with knowledge of any default or Event of its duties under this Agreement, or in Default with respect to the exercise Notes of any series unless either (1) such default or Event of its rights Default is known by a Responsible Officer or powers, if it (2) written notice of such default or Event of Default shall have reasonable grounds for believing that repayment been given to the Trustee by the Company or any other obligor on the Notes of any series or by any Holder of the Notes of any series, which notice shall refer to this Indenture and such funds or adequate indemnity against such risk is not reasonably assured to itNotes.
(13) The Calculation Agent, the Authenticating Agent and the Issuing and Paying Agent shall have the same immunities, protections and exculpations as the Trustee set forth hereunder.
Appears in 2 contracts
Samples: Senior Indenture (Cit Group Inc), Subordinated Indenture (Cit Group Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) delivered to it by the Issuer, any Holder, any legal counsel or any third party retained by or acting on behalf of any of the foregoing, believed by it to be genuine and to have been signed or presented by the proper party or parties;, without further inquiry. The Trustee will not perform, and has no obligation to perform, calculations or determinations of compliance with respect to any covenants or with respect to the availability of any basket or ratio under this Indenture.
(b) any Any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description an Issuer Request or Issuer Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;a certified Board Resolution.
(c) whenever Whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's ’s Certificate or Opinion of the Company, any Owner Trustee or any Loan Trustee;Counsel.
(d) The Trustee shall not be charged with knowledge of any fact, Default or Event of Default with respect to the Notes unless either (i) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (ii) written notice of such fact, Default or Event of Default shall have been received by a Responsible Officer and references this Indenture and the Notes. Delivery of reports to the Trustee pursuant to Section 1005 shall not constitute knowledge of, or notice to, the Trustee of the information contained therein.
(e) The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;accordance with the advice or opinion of such counsel or Opinion of Counsel.
(ef) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders of the Notes pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security and/or indemnity satisfactory to it against any loss, liability or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;expense.
(g) The 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, or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture, but the Trustee, may make such further inquiry or investigation into such facts or matters, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation.
(h) The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder.
(hi) the The Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timediscretion or rights or powers conferred upon it by this Indenture.
(j) The rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder whether as an Agent or exercising any trust or power conferred upon the Trusteeotherwise, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ik) The Trustee may request that the Issuer deliver an Incumbency Certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Incumbency Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(l) The Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture.
(m) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
(n) The permissive right of the Trustee to take actions permitted by this AgreementIndenture shall not be construed as an obligation or duty to do so.
(o) In no event shall the Trustee be responsible or liable for special, punitive, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against such risk is not reasonably assured to itdamage and regardless of the form of action.
Appears in 2 contracts
Samples: Indenture (Advanced Drainage Systems, Inc.), Indenture (Advanced Drainage Systems, Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may rely conclusively rely, and shall will be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;Person.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel conforming to Section 11.03 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders have offered to the Trustee security or indemnity, satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreement;compliance with such request or direction.
(ce) whenever in the administration of this Agreement the The Trustee shall deem it desirable that a matter will not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence it takes or omits to take in good faith that it believes to be herein specifically prescribed) may, in the absence of bad faith authorized or within its rights or powers conferred on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;it by this Indenture.
(df) the The Trustee may consult with counsel of its selection, and the advice of such counsel or any Opinion of Counsel shall will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;.
(g) In no event shall the Trustee may execute be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the trusts likelihood of such loss or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, damage and regardless of the Trustee shall not be responsible for any misconduct or negligence on the part form of any agent or attorney appointed with due care by it under this Agreement;action.
(h) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by forces beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, it being understood that the Trustee shall not be liable use reasonable efforts which are consistent with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest accepted practices in the Trust relating banking industry to resume performance as soon as practicable under the timecircumstances.
(i) The Trustee may at any time request that the Company and/or the Guarantor deliver an Officers’ Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, method which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and place of conducting not superseded.
(j) The Trustee may at any proceeding for time request that any remedy available Holder provide the Trustee with an IRS Form W-9 or W-8, as appropriate.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent.
(l) None of the Trustee or exercising any trust Agent shall have any liability or power conferred upon the Trusteeresponsibility with respect to, under this Agreement; and
or obligation or duty to monitor, determine or inquire (i) as to the Company’s or the Guarantor’s compliance with any covenant under this Indenture (other than the covenant to make payment on the Notes) or (ii) as to whether or not any Rating Agency has adjusted the rating of the Notes.
(m) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of its powers and duties hereunder.
(n) The 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 evident of indebtedness or other papers or document, but the Trustee, in its duties under this Agreementdiscretion, may make such further inquiry or in investigation into such facts or matters as it may see fit, and, if the exercise Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any of its rights or powers, if it shall have reasonable grounds for believing that repayment kind by reason of such funds inquiry or adequate indemnity against such risk is not reasonably assured to itinvestigation.
Appears in 2 contracts
Samples: Indenture (Cosan S.A.), Indenture (Cosan S.A.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers’ Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) the Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from either Co-Obligor shall be sufficient if signed by an Officer of such Co-Obligor.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with due care by it under this Agreement;Section 13.02 hereof, and such notice references the Notes.
(h) In no event shall the Trustee shall be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with limited to, loss of profit) irrespective of whether the Direction Trustee has been advised of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in likelihood of such loss or damage and regardless of the Trust relating to the timeform of action.
(i) The rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ij) the The Trustee shall not may request that any obligor hereunder deliver an officers’ certificate (which may be required to expend or risk its own funds in the performance form of Exhibit G hereto) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which officers’ certificate may be signed by any of its duties under this AgreementPerson authorized to sign an officers’ certificate, or including any person specified as so authorized in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 1 contract
Samples: Indenture (Central Credit, LLC)
Certain Rights of Trustee. Subject to the provisions of Section 315 4.1, including without limitation, the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and.
(i) the The Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any Default or Event of its duties under Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice thereof has been received by such Responsible Officer at the offices of the Trustee and such notice references the CVRs and this Agreement, or in CVR Agreement and the exercise fact that such notice constitutes notification of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itDefault.
Appears in 1 contract
Samples: Contingent Value Rights Agreement (Celgene Corp /De/)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement1.02;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any related Owner Trustee or any Loan related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement or any Intercreditor Agreement at the Direction of any of the Certificateholders pursuant to this Agreement or any Intercreditor Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or any Intercreditor Agreement or perform any duties under this Agreement or any Intercreditor Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement or any Intercreditor Agreement;; 37
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates of any series evidencing Fractional Undivided Cumulative Interests aggregating not less than a majority in interest in the Trust related Trusts relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement or any Intercreditor Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 1 contract
Samples: Pass Through Trust Agreement (United Air Lines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:Except as otherwise provided in -------------------------
(a) the The Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request Any request, direction, order or direction demand of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate (unless other evidence in respect thereof shall be herein specifically prescribed); and an Opinion any resolution of Counsel as provided in Section 1.02 the Board of this AgreementDirectors may be evidenced to the Trustee by a Board Resolution ;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such written advice or Opinion of Counsel;
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Subordinated Indenture at the Direction request, order or direction of any of the Certificateholders Subordinated Securityholders, pursuant to the provisions of this AgreementSubordinated Indenture, unless such Certificateholders Subordinated Securityholders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Subordinated Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document, unless requested in writing so to do by the Holders of Subordinated Securities pursuant to Section 6.09; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in compliance with the making of such Directioninvestigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Subordinated Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to such proceeding; and provided further, that nothing in this subsection (f) shall require the Trustee to give the Subordinated Securityholders any notice other than that required by Section 6.10. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be reimbursed by the Company upon demand;
(g) the The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) the The Trustee shall not be liable with respect to any action taken or omitted to be taken under no responsibility for the approval by it in good faith in accordance with the Direction of any expert for any of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority purposes expressed in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itSubordinated Indenture.
Appears in 1 contract
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.01:
(ai) following the occurrence of a Default or an Event of Default, the Trustee is entitled to require all Agents to act under its direction;
(ii) the Trustee may rely conclusively, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(biii) before the Trustee from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both, which shall conform to Section 13.05. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion and such certificate or opinion will be equal to complete authorization;
(iv) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(v) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be Incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cvi) whenever unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from either Issuer will be sufficient if signed by an officer of such Issuer;
(vii) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(viii) whenever, in the administration of this Indenture, the Intercreditor Agreement and any Additional Intercreditor Agreement, the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dix) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers personally or by agent or attorney;
(x) the Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(xi) in the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken;
(xii) the permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(xiii) delivery of reports, information and documents to the Trustee under Section 4.20 is for informational purposes only and the Trustee’s receipt of the foregoing will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Parent Guarantor’s or any Restricted Subsidiary’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(xiv) the rights, privileges, protections, immunities and benefits given to the Trustee in this Indenture, including, without limitation, its rights to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities hereunder, by the Registrar, the Agents, and each agent, custodian and other Person employed to act hereunder;
(xv) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(exvi) the Trustee shall be under have no obligation duty to exercise any inquire as to the performance of the rights or powers vested in it by this Agreement at the Direction of any covenants of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it Parent Guarantor and/or its Restricted Subsidiaries in compliance with such DirectionArticle Four hereof;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hxvii) the Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any action taken transfer, exchange, redemption, purchase or omitted to be taken by it in good faith in accordance with the Direction repurchase, as applicable, of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in any interest in any Notes, but may at its sole discretion, choose to do so;
(xviii) in no event shall the Trust relating to the time, method and place of conducting any proceeding Trustee be responsible or liable for any remedy available to failure or delay in the Trusteeperformance of its obligations hereunder arising out of, or exercising any trust caused by, directly or power conferred upon indirectly, forces beyond its control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God; it being understood that the Trustee, Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under this Agreementthe circumstances; and
(ixix) the Trustee shall not under any circumstance be liable for any consequential loss (being loss of business, goodwill, opportunity or profit of any kind) of the Issuers, any Guarantor or any Restricted Subsidiary.
(b) The Trustee may request that the Issuers deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(c) The Trustee is not required to expend give any bond or risk its own funds in surety with respect to the performance of its duties or the exercise of its powers under this Indenture or the Notes.
(d) The Trustee will not be liable to any person if prevented or delayed in performing any of its duties obligations or discretionary functions under this AgreementIndenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
(e) No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to applicable law or regulation.
(f) The Trustee may refrain from taking any action in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the exercise relevant jurisdiction, be contrary to any law of any that jurisdiction or, to the extent applicable, the State of its rights New York.
(g) The Trustee may assume without inquiry in the absence of actual knowledge that the Issuers are duly complying with their obligations contained in this Indenture required to be performed and observed by it, and that no Default or powers, if it shall have reasonable grounds for believing that Event of Default or other event which would require repayment of such funds or adequate indemnity against such risk is not reasonably assured to itthe Notes has occurred.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(a1) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document;
(b2) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(3) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care;
(4) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to it in its sole discretion against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(c5) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount at maturity of the outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; provided that the Trustee's conduct does not constitute gross negligence or bad faith;
(6) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter making be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h7) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon matters as it may see fit, and, if the TrusteeTrustee shall determine to make such further inquiry or investigation, under this Agreement; andit shall be entitled to examine the books, records and premises of FelCor LP personally or by agent or attorney;
(i) 8) the Trustee shall not be required deemed to expend or risk its own funds in the performance of any of its duties under this Agreementhave notice, or in charged with having knowledge, of an Event of Default except any Default or Event of Default of which a Responsible Officer of the exercise of any of its rights or powers, if it Trustee shall have reasonable grounds for believing that repayment of such funds received written notification at the Corporate Trust Office referencing the Notes and this Indenture or adequate indemnity against such risk is not reasonably assured obtained actual knowledge; and
(9) the rights, privileges, protections, immunities and benefits given to itthe Trustee including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by each Agent and its respective officers, employees, agents, custodians and other Persons employed to act hereunder.
Appears in 1 contract
Samples: Indenture (FelCor Lodging Trust Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may rely conclusively rely, and shall will be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and genuine. The Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required to have been signed be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of this Indenture (but need not confirm or presented by investigate the proper party accuracy of mathematical calculations or parties;other facts stated therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's ’s Certificate and or an Opinion of Counsel as provided conforming to Section 11.03 and the Trustee will not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;good faith in reliance on such certificate or opinion.
(c) whenever The Trustee may act and conclusively rely and shall be fully protected in acting and relying in good faith on the opinion or advice of, or information obtained from, any counsel, accountant, appraiser or other expert or adviser, whether retained or employed by the Issuer, the Guarantors or by the Trustee, in relation to any matter arising in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trusteetrusts hereof;
(d) the The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall will be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this AgreementHolders, unless such Certificateholders shall Holders have offered to the Trustee reasonable security security, reasonably satisfactory to it, or indemnity against the costcosts, expenses and liabilities which (including, without limitation, fees and expenses of agents and attorneys) that might be incurred by it in compliance with such Direction;request or direction.
(ge) the The Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall will not be liable with respect to for any action taken it takes or omitted omits to be taken by it take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority Holders in interest in the Trust accordance with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; andIndenture.
(if) The Trustee may appoint counsel and other advisors of its choice from time to time to provide advice and services arising out of or in connection with the performance by the Trustee of its obligations under this Indenture. The Trustee may consult with counsel of its choice, and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(g) The Trustee may act through its agents, attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate and shall not be required responsible for the misconduct or negligence of any agent, attorney, accountant, expert or other such professional appointed with due care.
(h) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreementhereunder, or in the exercise of any of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense (including, without limitation, fees and expenses of agents and attorneys). In no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if it shall have reasonable grounds for believing that repayment the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against damage and regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person authorized or employed by the Trustee to act hereunder.
(j) The Trustee may request that each of the Issuer and the Guarantors deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such risk is time to take specified actions pursuant to this Indenture.
(k) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably assured believed by it to itbe authorized or within the discretion or rights or powers conferred upon it by this Indenture.
Appears in 1 contract
Samples: Indenture (Ultrapar Holdings Inc)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.01:
(a) the The Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request Any request, direction, order or direction demand of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate (unless other evidence in respect thereof shall be herein specifically prescribed); and an Opinion any resolution of Counsel as provided in Section 1.02 the Board of this AgreementDirectors may be evidenced to the Trustee by a Board Resolution;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such written advice or Opinion of Counsel;
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Subordinated Indenture at the Direction request, order or direction of any of the Certificateholders Subordinated Securityholders pursuant to the provisions of this AgreementSubordinated Indenture, unless such Certificateholders Subordinated Securityholders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Subordinated Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document, unless requested in writing so to do by the Holders of Subordinated Securities pursuant to Section 6.09; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in compliance with the making of such Directioninvestigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Subordinated Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to such proceeding; and provided further, that nothing in this subsection (f) shall require the Trustee to give the Subordinated Securityholders any notice other than that required by Section 6.10. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be reimbursed by the Company upon demand;
(g) the The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;hereunder; and
(h) the The Trustee shall not be liable with respect to any action taken or omitted to be taken under no responsibility for the approval by it in good faith in accordance with the Direction of any expert for any of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority purposes expressed in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itSubordinated Indenture.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(a) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, facsimile transmission, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed signed, made or presented by the proper party person and may accept and rely upon the same as conclusive evidence of the truth and accuracy of the statement and opinions contained therein. The Trustee need not investigate any fact or partiesmatter stated in any such document;
(b) before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Section 1.03. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(c) the Trustee may consult with counsel and the written advice of such counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and reliance thereon and may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied holders, unless such holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(ce) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the written direction of the holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(f) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such DirectionOfficers' Certificate;
(g) the 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 Trustee, in its discretion, may execute any of the trusts make such further inquiry or powers under this Agreement investigation into such facts or perform any duties under this Agreement either directly or by or through agents or attorneysmatters as it may see fit, and and, if the Trustee shall not determine to make such further inquiry or investigation, it shall be responsible for any misconduct entitled to examine the books, records and premises of the Company personally or negligence on the part of any by agent or attorney appointed with due care by it under this Agreementattorney;
(h) the Trustee shall not be liable required to take notice or be deemed to have notice of any default hereunder unless the Trustee be specifically notified of such default in writing by the Company or any holder of the Securities, and in the absence of such notice the Trustee may conclusively assume that there is no default; provided that if the Trustee is acting as Paying Agent, the Trustee shall be required to take and be deemed to have notice of its failure to receive payments of interest or principal hereunder;
(i) except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility with respect to any action taken information in any offering memorandum or omitted other disclosure material distributed with respect to be taken by it the Securities, and the Trustee shall have no responsibility for compliance with securities laws in good faith connection with the issuance and sale of the Securities;
(j) in the event the Trustee shall receive inconsistent or conflicting requests and indemnity from two or more groups of holders of the Securities, each representing at least 25% (but less than 50%) of the aggregate principal amount of the Securities then outstanding, the Trustee will act in accordance with instructions received by the Direction holders of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating greater percentage thereof;
(k) except as otherwise expressly provided by the provisions of this Indenture, the Trustee shall not less than a majority in interest in the Trust relating be obligated and may not be required to give or furnish any notice, demand, report, request, reply, statement, advice or opinion to the time, method and place holder of conducting any proceeding for any remedy available Security or to the TrusteeCompany or any other Person, and the Trustee shall not incur any liability for its failure or exercising any trust refusal to give or power conferred upon furnish the Trustee, under this Agreementsame unless obligated or required to do so by the express provisions hereof; and
(il) the Trustee shall not be required to expend give any bond or risk its own funds in surety with respect to the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itpowers under this Indenture.
Appears in 1 contract
Samples: Indenture (Earthweb Inc)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act7.1:
(ai) the Pass Through Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(bii) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this AgreementRequest;
(ciii) whenever in the administration of this Pass Through Trust Agreement the Pass Through Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Pass Through Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any the Owner Trustee Trustee[, the Equipment Trust Trustee] or any Loan the Indenture Trustee;
(div) Before the Pass Through Trustee acts or refrains from acting;
(v) the Pass Through Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(evi) the Pass Through Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Pass Through Trust Agreement at the Direction request or direction of any of the Certificateholders pursuant to this Pass Through Trust Agreement, unless such Certificateholders shall have offered to the Pass Through Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(gvii) the Pass Through 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 or other paper or document;
(viii) the Pass Through Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Pass Through Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(hix) to the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance extent the provisions of this Section 7.3 are inconsistent with the Direction duties of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in Pass Through Trustee as required by Section 315 of the Trust relating to Indenture Act, the time, method and place requirements of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; andsuch Section 315 shall prevail;
(ix) the The Pass Through Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of any its powers and duties hereunder; and
(xi) the permissive rights of its duties under this Agreement, or in the exercise of any of its rights or powers, if it Pass Through Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itbe construed as a duty.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:7.01
(ai) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, Officers' Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person or partiespersons;
(bii) any request before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers' Certificate and and/or an Opinion of Counsel as provided Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreement;
(c) good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Agreement Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, taking or suffering or omitting any action hereunder, the Trustee such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its partattorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care;
(iv) any request, rely upon direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer's Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company, any Owner Trustee or any Loan Trustee;
(dv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hviii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any trust kind by reason of such inquiry or power conferred upon the Trustee, under this Agreement; andinvestigation;
(iix) the Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(x) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its duties under capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this AgreementIndenture, or which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers' Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers' Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the willful misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed Event of Default (except any Event of Default occurring pursuant to Sections 6.01(a)(i), 6.01(a)(ii) and 4.01) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with due care by it under Section 12.02, and such notice references the Notes and this Agreement;Indenture.
(h) In no event shall the Trustee shall be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with limited to, loss of profit) irrespective of whether the Direction Trustee has been advised of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in likelihood of such loss or damage and regardless of the Trust relating to the timeform of action.
(i) The rights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder.
(ij) The Trustee may request that the Trustee shall not be required Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to expend or risk its own funds in the performance of any of its duties under take specified actions pursuant to this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 1 contract
Samples: Indenture (Windstream Corp)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company Issuer or the Co-Issuer mentioned herein shall be sufficiently evidenced by a written description of an Issuer Request or Issuer Order, as the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementcase may be;
(c) whenever in the administration of this Agreement Indenture the Trustee shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Trustee may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants (which may or may not be the accountants appointed by the Issuer pursuant to Section 10.12), investment bankers or other persons qualified to provide the information required to make such determination, including nationally recognized dealers in securities of the Company, any Owner Trustee or any Loan Trusteetype being valued and securities quotation services;
(d) as a condition to the taking or omitting of any action by it hereunder, the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered provided to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses (including reasonable attorneys' fees and expenses) and liabilities which might reasonably be incurred by it in compliance complying with such Directionrequest or direction;
(f) the 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, note or other paper or document, but the Trustee, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of aany Rating Agency shall (subject to the right hereunder to be indemnified reasonably satisfactory to it for associated expense and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Trustee shall be entitled, on reasonable prior written notice to the Co-Issuers and the Collateral Manager, to examine the books and records relating to the Notes and the Assets, personally or by agent or attorney, during the Co-Issuers' or the Collateral Manager's normal business hours; provided that the Trustee shall, and shall cause its agents to, hold in confidence all such information, except (i) to the extent disclosure may be required by law or by any regulatory, administrative or governmental authority, (ii) as otherwise required pursuant to this Indenture and (iii) to the extent that the Trustee, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that the Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, and ; provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent appointed or attorney appointed appointed, with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager;
(i) nothing herein shall be construed to impose an obligation on the part of the Trustee to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Issuer or Collateral Manager (unless and except to the extent otherwise expressly set forth herein);
(j) to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles (as in effect in the United States) ("GAAP"), the Trustee shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants identified in the Accountants' Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent certified public accountant at the expense of the Issuer) as to the application of GAAP in such connection, in any instance;
(k) the Trustee shall not be liable for the actions or omissions of, or any inaccuracies in the records of, the Collateral Manager, the Issuer, the Co-Issuer, any Paying Agent (other than the Trustee), DTC, Euroclear, Clearstream, or any other clearing agency or depository or for the actions or omissions of any such Person (including compliance with Rule 17g-5 requirements in accordance with Section 14.17), and without limiting the foregoing, the Trustee shall not be under any obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof or of the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Trustee from the Collateral Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Assets;
(l) notwithstanding any action taken term hereof (or omitted any term of the UCC that might otherwise be construed to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than applicable to a majority in interest "securities intermediary" as defined in the Trust relating UCC) to the timecontrary, method and place none of conducting any proceeding for any remedy available to the Trustee, the Custodian or exercising the Securities Intermediary shall be under a duty or obligation in connection with the acquisition or Grant by the Issuer to the Trustee of any trust item constituting the Assets, or power conferred upon to evaluate the Trusteesufficiency of the documents or instruments delivered to it by or on behalf of the Issuer in connection with its Grant or otherwise, under this Agreement; andor in that regard to examine any Underlying Instrument, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets;
(im) in the event the Bank is also acting in the capacity of Paying Agent, Registrar, Transfer Agent, Custodian, Calculation Agent or Securities Intermediary, the rights, protections, benefits, immunities and indemnities afforded to the Trustee pursuant to this Article VI shall also be afforded to the Bank acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to any rights, immunities and indemnities provided in the Securities Account Control Agreement or any other documents to which the Bank in such capacity is a party;
(n) any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture shall not be construed as a duty;
(o) the Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance execution of this Indenture or otherwise;
(p) the Trustee shall not be deemed to have notice or knowledge of any matter unless a Trust Officer has actual knowledge thereof or unless written notice thereof is received by the Trustee at the Corporate Trust Office and such notice references the Notes generally, the Issuer, the Co-Issuer or this Indenture. Whenever reference is made in this Indenture to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Trustee is concerned, be construed to refer only to a Default or an Event of Default of which the Trustee is deemed to have knowledge in accordance with this paragraph;
(q) the Trustee shall not be responsible for delays or failures in performance resulting from circumstances beyond its duties under this Agreementcontrol (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, loss or malfunctions of utilities, computer (hardware or software) or communication services);
(r) to help fight the funding of terrorism and money laundering activities, the Trustee will obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Trustee. The Trustee will ask for the name, address, tax identification number and other information that will allow the Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Trustee may also ask for formation documents such as articles of incorporation, an offering memorandum, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured other identifying documents to it.be provided;
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) If an Event of Default has occurred and is continuing, the Trustee may rely shall exercise such of the rights and shall be protected powers vested in acting it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or refraining from acting use under the circumstances in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;conduct of his own affairs.
(b) any request Except during the period when an Event of Default is continuing:
(1) the Trustee is required to perform only those duties as are specifically set forth in this Indenture and no covenants or direction of the Company mentioned herein obligations shall be sufficiently evidenced by a written description of implied in this Indenture that are adverse to the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;Trustee; and
(c2) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate the Trustee may conclusively rely, as to the truth of the Companystatements and the correctness of the opinions expressed therein, any Owner upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided that the Trustee shall examine the certificates and opinions to determine whether or any Loan Trusteenot they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Section 5.2(c) does not limit the effect of Section 5.2(b);
(d2) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible liable for any misconduct or negligence on error of judgment made in good faith by a Responsible Officer, unless it is proved that the part of any agent or attorney appointed with due care by it under this AgreementTrustee was negligent in ascertaining the pertinent facts;
(h3) the Trustee shall not be liable with respect to any action taken it takes or omitted omits to be taken by it take in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating direction received by it pursuant to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this AgreementSection 4.12; and
(i4) no provision of this Indenture shall require the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreement, hereunder or in the exercise of any of its rights or powers, powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to this Section 5.2.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense, including such reasonable advances as may be requested by the Trustee.
(f) Subject to the foregoing Sections 5.2(a), 5.2(b), 5.2(c), 5.2 (d) and 5.2(e):
(1) The Trustee may rely and shall be protected in acting or in refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by a Request or Order of the Issuer and any resolution by the Board of Directors of the Issuer may be sufficiently evidenced by a Board Resolution.
(2) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. In addition, in determining the compliance of the Issuer with the financial covenants set forth herein, the Trustee may rely on the certificate delivered to the Trustee pursuant to Section 9.18.
(3) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers.
(5) The Trustee may consult with counsel, accountants or other experts and any advice of such counsel, accountants or other experts shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice.
(6) The Trustee shall not be deemed to have notice of any Default hereunder, except for Events of Default described in Paragraphs (a) or (b) of Section 4.1 (only to the extent that the Trustee acts as the Paying Agent), unless the Trustee shall be specifically notified by a writing delivered to it of such Default by the Issuer, , the Paying Agent (to the extent the Trustee is not acting as the Paying Agent) or by the Holders of at least 25% in aggregate principal amount of the Outstanding Senior Notes, and in the absence of such notice so delivered, the Trustee may conclusively assume that there is no Default except as aforesaid.
(7) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as duties.
Appears in 1 contract
Samples: Indenture (Markel Corp)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.1:
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting (except in connection with the original issuance of the Notes on the date hereof), it may require an Officer’s Certificate or an Opinion of Counsel, or both, which shall conform to Section 12.5. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(dvii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with the advice or opinion of such counsel;
(eix) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreementrights, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costprivileges, expenses protections, immunities and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(ix) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(xi) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to prevent any failure or delay in the performance of its duties obligations and to resume performance as soon as practicable under this Agreementthe circumstances; and
(xii) in no event shall the Trustee be responsible or liable for special, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against damage and regardless of the form of action.
(b) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such risk is time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 1 contract
Samples: Indenture (Sealed Air Corp/De)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement1.02;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any related Owner Trustee or any Loan related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement or any Intercreditor Agreement at the Direction of any of the Certificateholders pursuant to this Agreement or any Intercreditor Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or any Intercreditor Agreement or perform any duties under this Agreement or any Intercreditor Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement or any Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates of any series evidencing Fractional Undivided Cumulative Interests aggregating not less than a majority in interest in the Trust related Trusts relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement or any Intercreditor Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 1 contract
Samples: Pass Through Trust Agreement (United Air Lines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may rely require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be protected responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in acting good faith that it believes to be authorized or refraining within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from acting the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in reliance upon it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with Section 12.02, and such notice references the Notes.
(h) The 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 debenture, note, other evidence of indebtedness or other paper or document believed by document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement may see fit, and, if the Trustee shall deem determine to make such further inquiry or investigation, it desirable that a matter shall be proved or established prior entitled to takingexamine the books, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any Owner Trustee kind by reason of such inquiry or any Loan Trusteeinvestigation;
(di) In no event shall the Trustee may consult with counsel and be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the advice Trustee has been advised of the likelihood of such counsel loss or any Opinion damage and regardless of Counsel shall be full and complete authorization and protection in respect the form of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereonaction;
(ej) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this AgreementThe rights, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costprivileges, expenses protections, immunities and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreementand each agent, custodian and other Person employed to act hereunder; and
(ik) The Trustee may request that the Trustee shall not be required Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to expend or risk its own funds in the performance of any of its duties under take specified actions pursuant to this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 1 contract
Samples: Indenture (Bon Ton Stores Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(a1) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document;
(b2) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel, which shall conform to Section 10.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(3) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care;
(4) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(c5) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount at maturity of the outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; provided that the Trustee’s conduct does not constitute gross negligence or bad faith;
(6) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter making be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers’ Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h7) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted to be taken by it matters stated in good faith in accordance with the Direction any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeindebtedness or other paper or document, method and place of conducting any proceeding for any remedy available to but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon matters as it may see fit, and, if the TrusteeTrustee shall determine to make such further inquiry or investigation, under this Agreement; andit shall be entitled to examine the books, records and premises of FelCor LP personally or by agent or attorney;
(i) 8) the Trustee shall not be required deemed to expend or risk its own funds in the performance of any of its duties under this Agreementhave notice, or in charged with having knowledge, of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 6.01(a) and 6.01(b) or (ii) any Default or Event of Default of which a Responsible Officer of the exercise of any of its rights or powers, if it Trustee shall have reasonable grounds for believing that repayment of such funds received written notification at the Corporate Trust Office referencing the Notes and this Indenture or adequate indemnity against such risk is not reasonably assured to itobtained actual knowledge.
Appears in 1 contract
Samples: Indenture (FelCor Lodging Trust Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers’ Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture or the Notes.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costlosses, expenses and liabilities which that might be incurred by it in compliance with such Direction;request or direction.
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the The Trustee shall not be responsible for any misconduct or negligence on the part deemed to have notice of any agent Default or attorney appointed Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such event is sent to the Trustee in accordance with due care by it under this Agreement;Section 11.02 hereof, and such notice references the Notes.
(h) the The Trustee shall not be liable with respect bound to make any action taken investigation into facts or omitted to be taken by it matters stated in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timeany resolution, method and place of conducting any proceeding for any remedy available to certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document, but the Trustee, in its discretion, may make such further inquiry or exercising any trust investigation into such facts or power conferred upon the Trusteematters as it sees fit, under this Agreement; and
(i) , if the Trustee shall not be required determine to expend make such further inquiry or risk its own funds in the performance of any of its duties under this Agreementinvestigation, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment be entitled to examine books, records and premises of such funds the Company, personally or adequate indemnity against such risk is not reasonably assured to itby agent or attorney.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) In the absence of bad faith on its part, the Trustee may rely conclusively rely, and shall will be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;Person.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel conforming to Section 10.03 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders have offered to the Trustee security or indemnity, satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreement;compliance with such request or direction.
(ce) whenever in the administration of this Agreement the The Trustee shall deem it desirable that a matter will not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence it takes or omits to take in good faith that it believes to be herein specifically prescribed) may, in the absence of bad faith authorized or within its rights or powers conferred on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;it by this Indenture.
(df) the The Trustee may consult with counsel of its selection, and the advice of such counsel or any Opinion of Counsel shall will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;.
(g) In no event shall the Trustee may execute be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the trusts likelihood of such loss or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, damage and regardless of the Trustee shall not be responsible for any misconduct or negligence on the part form of any agent or attorney appointed with due care by it under this Agreement;action.
(h) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by forces beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, it being understood that the Trustee shall not be liable use reasonable efforts which are consistent with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest accepted practices in the Trust relating banking industry to resume performance as soon as practicable under the timecircumstances.
(i) The Trustee may at any time request that the Company deliver an Officers’ Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, method which Officers’ Certificate may be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and place of conducting not superseded.
(j) The Trustee may at any proceeding for time request that any remedy available Holder provide the Trustee with an IRS Form W-9 or W-8, as appropriate.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent.
(l) None of the Trustee or exercising any trust Agent shall have any liability or power conferred upon the Trusteeresponsibility with respect to, under this Agreement; and
or obligation or duty to monitor, determine or inquire (i) as to the Company compliance with any covenant under this Indenture (other than the covenant to make payment on the Notes) or (ii) as to whether or not any Rating Agency has adjusted the rating of the Notes.
(m) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of its powers and duties hereunder.
(n) The 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 evident of indebtedness or other papers or document, but the Trustee, in its duties under this Agreementdiscretion, may make such further inquiry or in investigation into such facts or matters as it may see fit, and, if the exercise Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any of its rights or powers, if it shall have reasonable grounds for believing that repayment kind by reason of such funds inquiry or adequate indemnity against such risk is not reasonably assured to itinvestigation.
Appears in 1 contract
Samples: Indenture (Cosan Ltd.)
Certain Rights of Trustee. (a) Except during the continuance of an Event of Default, the Trustee undertakes to perform such functions and duties and only such functions and duties as are specifically set forth in this Indenture, and no implied duties or obligations shall be read into this Indenture against the Trustee. During the existence of an Event of Default, the Trustee shall exercise such of the rights and powers under this Indenture vested in the Trustee under this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs. No provision of this Indenture shall be construed to relieve the Trustee from its duties, except to the extent permitted by the Trust Indenture Act. Subject to the provisions of Section 315 601, whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 603.
(b) Subject to the Trust Indenture ActAct and Section 601:
(a1) in the absence of bad faith on its part, the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c3) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers’ Certificate;
(d4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(g6) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under hereunder; and
(8) the Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes unless either (A) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company, any Notes Guarantor or by any Holder.
(9) No provision of this AgreementIndenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(A) this clause (9) of subsection (b) of this Section 603 shall not be construed to limit the effect of subsection (b)(1) of this Section 603;
(hB) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(C) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than Holders of a majority in interest in principal amount of the Trust Outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this AgreementIndenture; and
(iD) no provision of this Indenture shall require the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreementhereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(10) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 603.
Appears in 1 contract
Samples: Indenture (Sanmina-Sci Corp)
Certain Rights of Trustee. Subject to the provisions of ------------------------- Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;1.02; ------------
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee Company or any Loan TrusteeIndenture Trustee for a Trust Owned Note;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates of any class evidencing Fractional Undivided Cumulative Interests aggregating not less than a majority in interest in the Trust related Trusts relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 1 contract
Samples: Pass Through Trust Agreement (United Air Lines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, notice, other evidence of Indebtedness or other paper or document (whether in its original or facsimile or electronic form) believed by it to be genuine and to have been signed or presented by the proper party or parties;parties.
(b) any Any request or direction of the Company mentioned herein Issuer or the Sponsor shall be sufficiently evidenced by a written description instrument signed by an Authorized Officer of the subject matter Issuer or the Sponsor, as the case may be, and any resolution of the Board of Directors of the Issuer or the Sponsor, as the case may be, shall be sufficiently evidenced by a copy thereof accompanied certified by an Officer's Certificate and an Opinion the secretary of Counsel as provided in Section 1.02 such Board of this Agreement;Directors.
(c) whenever Whenever in the administration of this Agreement Indenture or any other Financing Document the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunderhereunder or thereunder, the Trustee (unless other evidence is herein or therein specifically prescribed to be herein specifically prescribedrelied upon) may, in the absence of bad faith gross negligence or willful misconduct on its part, conclusively rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;’s Certificate.
(d) the The Trustee may consult with counsel and third party advisors of its selection and the advice of such counsel or third party advisors or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder or under any other Financing Document in good faith and in reliance thereon;. The Trustee shall have no responsibility for the contents of any Opinion of Counsel or other opinions delivered to it.
(e) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture or any other Financing Document at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity (reasonably satisfactory to the Trustee) against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Direction;request or direction.
(f) The 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, notice, other evidence of Indebtedness or other paper or document.
(g) the The Trustee may execute any of the trusts or powers hereunder or under this Agreement any other Financing Document or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care in good faith by it under this Agreement;hereunder.
(h) the The Trustee shall not be liable with respect under no obligation to take any action taken or omitted to be taken by which it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, reasonably deems discretionary under this Agreement; andIndenture or any other Financing Document.
(i) The Trustee shall have no responsibility with respect to the recording, re- recording, filing or re-filing under the laws of any jurisdiction of this Indenture or any other Security Document, or any document or statement that may be recorded, re-recorded, filed or re- filed under any such laws to perfect or protect the Liens created in the Collateral by or pursuant to this Indenture, any other Security Document or any other document or to the payment of fees, charges, or Taxes in connection therewith or to give any notice thereof.
(j) The Trustee shall not incur any liability for its own action or inaction except for gross negligence and willful misconduct. The Trustee shall not incur any liability arising from any loss of value of the Collateral, loss of insurance, custody of assets, or from breach of obligations by the Issuer or any other Person.
(k) Unless required by Applicable Law or the express terms of this Indenture, Holders shall not have the right to compel disclosure of information made available to the Trustee in connection with this Indenture.
(l) No knowledge shall be imputed to the Trustee unless a Responsible Officer within its corporate trust department has actual knowledge or has received written notice thereof.
(m) The Trustee shall not be required to expend give any bond or risk its own funds surety in respect of the performance of any its powers and duties hereunder.
(n) The Trustee may request that the Issuer deliver a certificate setting forth the names of its duties under individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 1 contract
Samples: Indenture
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Authorized Officer shall be considered signed or executed by such Authorized Officer on behalf of the applicable Person. The Trustee shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto, Any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Authorized Officer shall be considered signed or executed by such Authorized Officer on behalf of the applicable Person. The Trustee shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto;
(b) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description of an Issuer Request or Issuer Order, as the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementcase may be;
(c) whenever in the administration of this Agreement Indenture the Trustee shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate ’s certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Trustee may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants (which may or may not be the Independent accountants appointed by the Issuer pursuant to Section 10.9), investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the Companytype being valued, any Owner Trustee or any Loan Trusteesecurities quotation services, loan pricing services and loan valuation agents;
(d) as a condition to the taking or omitting of any action by it hereunder, the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise exercise, enforce or to honor any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered provided to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such Directionrequest or direction;
(f) the 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, note or other paper or document, but the Trustee, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be indemnified to its reasonable satisfaction for associated expense and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Trustee shall be entitled, on reasonable prior notice to the Issuer and the Collateral Manager, to examine the books and records relating to the Notes and the Assets, personally or by agent or attorney, during the Issuer’s or the Collateral Manager’s normal business hours; provided that the Trustee shall, and shall cause its agents to, hold in confidence all such information, except (i) to the extent disclosure may be required by law or by any regulatory, administrative, judicial or governmental authority and (ii) to the extent that the Trustee, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided further that the Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, and ; provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent appointed or attorney appointed appointed, with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken it takes or omitted omits to be taken by it take in good faith in accordance with that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; andCollateral Manager;
(i) nothing herein shall be construed to impose an obligation on the part of the Trustee to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Issuer or Collateral Manager (unless and except to the extent otherwise expressly set forth herein);
(j) to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles (as in effect in the United States) (“GAAP”), the Trustee shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants identified in the Accountants’ Report (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Issuer) as to the application of GAAP in such connection, in any instance;
(k) the Trustee shall not be liable for the actions or omissions of, or any inaccuracies in the records of, the Collateral Manager, the Issuer, any Paying Agent (other than the Trustee), DTC, Euroclear, Clearstream, or any other clearing agency or depository and without limiting the foregoing, the Trustee shall not be under any obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof or of the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Trustee from the Collateral Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Assets;
(l) notwithstanding any term hereof (or any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, none of the Trustee, the Custodian or the Securities Intermediary shall be under a duty or obligation in connection with the acquisition or Grant by the Issuer to the Trustee of any item constituting the Assets, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Issuer in connection with its Grant or otherwise, or in that regard to examine any Underlying Instrument, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets;
(m) in the event the Bank is also acting in the capacity of Paying Agent, Registrar, Transfer Agent, Custodian, Calculation Agent or Securities Intermediary, the rights, protections, benefits, immunities and indemnities afforded to the Trustee pursuant to this Article VI shall also be afforded to the Bank acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to any rights, protections, benefits, immunities and indemnities provided in the Securities Account Control Agreement or any other documents to which the Bank in such capacity is a party;
(n) any permissive right of the Trustee to take or refrain from taking actions enumerated herein shall not be construed as a duty;
(o) to the extent permitted by applicable law, the Trustee shall not be required to expend give any bond or risk surety in respect of the execution of this Indenture or otherwise;
(p) the Trustee shall not be deemed to have notice or knowledge of any matter unless a Trust Officer has actual knowledge thereof or unless written notice thereof is received by the Trustee at the Corporate Trust Office and such notice references the Notes generally, the Issuer or this Indenture. Whenever reference is made herein to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Trustee is concerned, be construed to refer only to a Default or an Event of Default of which the Trustee is deemed to have knowledge in accordance with this paragraph;
(q) the Trustee shall not be responsible for delays or failures in performance resulting from circumstances beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, epidemics or pandemics, government mandated closures, acts of war, terrorism, loss or malfunctions of utilities, computer (hardware or software) or communications services;
(r) to help fight the funding of terrorism and money laundering activities, the Trustee will obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Trustee. The Trustee will ask for the name, address, tax identification number and other information that will allow the Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Trustee may also ask for formation documents such as articles of incorporation, an offering memorandum, or other identifying documents to be provided;
(s) to the extent not inconsistent herewith, the rights, protections, immunities and indemnities afforded to the Trustee pursuant to this Indenture also shall be afforded to the Bank in each of its capacities under the Transaction Documents and also to the Collateral Administrator; provided that, with respect to the Collateral Administrator, such rights, protections, immunities and indemnities shall be in addition to any rights, protections, immunities and indemnities provided in the Collateral Administration Agreement;
(t) in making or disposing of any investment permitted by this Indenture, the Trustee is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a subagent of the Trustee or for any third party or dealing as principal for its own funds account. If otherwise qualified, obligations of the Bank or any of its Affiliates shall qualify as Eligible Investments hereunder;
(u) the Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the performance Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or subcustodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under Section 6.7 of this Indenture;
(v) the Trustee shall have no duty (i) to see to any recording, filing, or depositing of this Indenture or any supplemental indenture or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redepositing of any thereof or (ii) to maintain any insurance;
(w) unless the Trustee receives written notice of an error or omission related to financial information or disbursements provided to Holders within 90 days of Holders’ receipt of the same, the Trustee shall have no liability in connection with such and, absent direction by the requisite percentage of Holders entitled to direct the Trustee, no further obligations in connection thereof;
(x) None of the Collateral Administrator, the Calculation Agent or the Trustee shall have any liability or responsibility for (i) the monitoring or determination of the unavailability or the cessation of the Benchmark, (ii) the determination (other than, in the case of the Calculation Agent, the calculation of such rate once such applicable rate has been selected and adopted pursuant to this Indenture), selection or verification of an Alternative Rate, a Fallback Rate, or an alternative base rate (including, without limitation, whether any such rate is an Alternative Rate or a Fallback Rate or whether a Benchmark Replacement Date or a Benchmark Transition Event has occurred, or any other conditions to the designation of such rate have been satisfied), (iii) the determination or selection of any Base Rate Modifier or any other modifier thereto, or (iv) the determination or selection of any methodology or conventions for the calculation of an Alternative Rate (which, for example, may include operational, administrative or technical parameters for compounding such Alternative Rate). None of the Collateral Administrator, the Trustee or the Calculation Agent shall have any liability for any failure or delay in performing its duties under this AgreementIndenture or the other Transaction Documents as a result of the unavailability of a “Benchmark” rate as described in the definition thereof, or as a result of the Collateral Manager’s failure or delay in selecting or designating a non-Benchmark reference rate or timely proposing an Alternative Rate, Fallback Rate or other alternative base rate, or otherwise;
(y) the Trustee will be under no obligation to (i) confirm or verify whether the conditions to the Delivery of the Assets have been satisfied or to determine whether or not a Collateral Obligation is eligible for purchase hereunder or meets the criteria in the definition thereof or (ii) evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Issuer in connection with the Grant by the Issuer to the Trustee of any item constituting the Assets or otherwise, or in that regard to examine any Underlying Instruments, in order to determine compliance with the exercise applicable requirements of any and restrictions on transfer of its rights or powers, if it a Collateral Obligation;
(z) the Trustee shall have reasonable grounds no obligation to determine the E.U./U.K. Retained Interest or verify or monitor whether an E.U. Retention Deficiency has occurred or whether the E.U. Securitization Laws, the U.K. Securitization Laws or the U.S. Risk Retention Rules have been or will be complied with; and
(aa) in order to comply with the laws, rules, regulations, and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act of the United States (for believing that repayment the purposes of this clause (aa), “Applicable Law”), the Trustee is required to obtain, verify, record, and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee upon its request from time to time such funds or adequate indemnity against identifying information and documentation as may be available for such risk is not reasonably assured party in order to itenable the Trustee to comply with Applicable Law.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture ActIn fulfilling its duties under this Indenture:
(ai) the Trustee may rely conclusively rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or any document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document, but may require reasonable evidence of the due execution of any such document;
(bii) before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, which shall conform to Section 12.03. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) The Trustee may employ or retain such counsel, accountant, or other experts or advisors as it reasonably requires for the purpose of determining and discharging its duties and administering the trusts hereunder and may pay reasonable remuneration for all services so performed by any of them, without taxation of costs of any counsel or advisor, and shall not be responsible for any misconduct on the part of any of them (provided that nothing herein shall constitute a waiver by the Company of any right it may have to tax such costs). Any reasonable remuneration so paid by the Trustee shall be repaid to the Trustee in accordance with Section 7.06.The Trustee may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained from any counsel, accountant or other expert or advisor, whether retained or employed by the Company or by the Trustee, in relation to any matter arising in the administration of the trusts hereof;
(vi) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence, bad faith or willful misconduct;
(vii) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hviii) the Trustee shall not be liable with respect bound to make any action taken investigation into the facts or omitted 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be taken by it in good faith in accordance with entitled to examine the Direction books, records and premises of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating Company or Guarantor personally or by agent or attorney at a reasonable cost which shall be paid by the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(ix) the Trustee shall not less than be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a majority in interest in Default or Event of Default is received by the Trustee at the Corporate Trust relating to Office of the timeTrustee, method and place of conducting any proceeding for any remedy available such notice references the Debentures and this Indenture;
(x) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, including, without limitation as Paying Agent, Registrar and each agent, custodian and other Person employed to act hereunder;
(xi) the Trustee may request that the Company or exercising the Guarantor deliver an Officer’s Certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any trust or power conferred upon the TrusteePerson authorized to sign an Officer’s Certificate, under this Agreementincluding any Person specified as so authorized in any such certificate previously delivered and not superseded; and
(ixii) the Trustee shall not be required to expend or risk its own funds exercise any powers and shall not have any responsibilities except as expressly provided in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it Indenture and shall have reasonable grounds for believing that repayment of such funds no obligation to recognize nor have any liability or adequate indemnity against such risk responsibility arising under any other document or agreement to which the Trustee is not reasonably assured to ita party, notwithstanding that reference thereto may be made herein.
Appears in 1 contract
Samples: Indenture (Aon Corp)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b2) any request or direction of the Company Issuer mentioned herein shall be sufficiently evidenced by a written description an Issuer Request or Issuer Order and any resolution of the subject matter thereof accompanied Board may be sufficiently evidenced by a Board Resolution certified by the Secretary or an Officer's Certificate Assistant Secretary of the Issuer to have been duly adopted by the Board of the Issuer and an Opinion to be in full force and effect on the date of Counsel as provided in Section 1.02 of this Agreementsuch certification, and delivered to the Trustee;
(c3) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith faith, gross negligence or willful misconduct on its part, conclusively rely upon an Officer's ’s Certificate or Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d4) the Trustee shall not be charged with knowledge of any fact, Default or Event of Default with respect to the Notes unless written notice of such fact, Default or Event of Default shall have been received by a Responsible Officer from the Issuer, any other obligor of the Notes or from Holders of at least 30% of the aggregate principal amount of the Notes and references this Indenture and the Notes. Delivery of any reports to the Trustee pursuant to Section 10.09 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);
(5) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with the advice or opinion of such counsel or Opinion of Counsel;
(e6) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costany loss, expenses and liabilities which might be incurred by it in compliance with such Directionliability, claim or expense;
(g7) the 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, or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation;
(8) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h9) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of discretion or rights or powers conferred upon it by this Indenture;
(10) the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the timerights, method privileges, protections, immunities and place of conducting any proceeding for any remedy available benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder whether as an Agent or exercising any trust or power conferred upon the Trusteeotherwise, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(i11) the Trustee may request that the Issuer deliver an incumbency certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which incumbency certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(12) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(13) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(14) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of any its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its duties reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third‑party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under this Agreementthe circumstances;
(15) in no event shall the Trustee be responsible or liable for special, indirect, punitive or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or powers, if it damage and regardless of the form of action;
(16) the Trustee shall have reasonable grounds for believing no obligation to pursue any action that repayment of such funds or adequate indemnity against such risk is not reasonably assured in accordance with applicable law;
(17) in no event shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes issued hereunder; and
(18) the permissive right of the Trustee to ittake actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
Appears in 1 contract
Samples: Indenture (Mr. Cooper Group Inc.)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:TIA Sections 315(a) through (d):
(ai) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party person. The Trustee need not investigate any fact or partiesmatter stated in the document;
(bii) any request before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided Counsel, which shall conform to Section 13.04. The Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith in reliance on such certificate or opinion;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(diii) the Trustee may consult with counsel act through its attorneys and agents and shall not be responsible for the advice of such counsel misconduct or any Opinion of Counsel shall be full and complete authorization and protection in respect negligence of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereonagent appointed with due care;
(eiv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this AgreementHolders, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which that might be incurred by it in compliance with such Directionrequest or direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(hv) the Trustee shall not be liable with respect to for any action taken it takes or omitted omits to be taken by it take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than Holders of a majority in interest in principal amount of the Trust Outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this AgreementIndenture; andprovided that the Trustee’s conduct does not constitute negligence or bad faith;
(ivi) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney;
(vii) the Trustee is not required to expend give any bond or risk its own funds in surety with respect to the performance of any its duties or the exercise of its powers under this Indenture;
(viii) the Trustee’s immunities and protections from liability and its rights to compensation and indemnification in connection with the performance of its duties under this AgreementIndenture shall extend to the Trustee’s officers, directors, agents and employees. Such immunities and protections and right to indemnification, together with the Trustee’s right of compensation, shall survive the Trustee’s resignation or removal and final payment of the Notes; and
(ix) the Trustee may consult with counsel (who may, but need not be, counsel to the Company) and the opinion of such counsel shall be full and complete authorization and protection in the exercise respect of any of its rights action taken or powers, if it shall have reasonable grounds for believing that repayment suffered by the Trustee hereunder in good faith and in accordance with the opinion of such funds or adequate indemnity against such risk is not reasonably assured to itcounsel.
Appears in 1 contract
Samples: Indenture (Graphic Packaging Corp)
Certain Rights of Trustee. (a) Subject to the provisions of Section 315 of the Trust Indenture Act7.1:
(ai) the Trustee may rely rely, and shall be protected in acting or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesperson;
(bii) before the Trustee acts or refrains from acting (except in connection with the original issuance of the Notes on the date hereof), it may require an Officer’s Certificate or an Opinion of Counsel, or both, which shall conform to Section 12.5. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description any of the subject matter thereof accompanied Holders, unless such Holders shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by an Officer's Certificate and an Opinion of Counsel as provided it in Section 1.02 of this Agreementcompliance with such request or direction;
(cv) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate ’s Certificate; 42
(vii) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, any Owner Trustee Issuers personally or any Loan Trusteeby agent or attorney;
(dviii) the Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonupon the advice or opinion of such counsel;
(eix) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreementrights, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costprivileges, expenses protections, immunities and liabilities which might be incurred by it in compliance with such Direction;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available benefits given to the Trustee, or exercising any trust or power conferred upon including its right to be indemnified, are extended to, and shall be enforceable by, the TrusteeTrustee in each of its capacities hereunder, under this Agreement; andand each agent, custodian and other Person employed to act hereunder;
(ix) the Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the execution of the trusts and powers under this Indenture;
(xi) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to prevent any failure or delay in the performance of its duties obligations and to resume performance as soon as practicable under this Agreementthe circumstances; and
(xii) in no event shall the Trustee be responsible or liable for punitive, special, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against damage and regardless of the form of action.
(b) The Trustee may request that the Issuers deliver an Officer’s Certificate setting forth the names of the individuals or titles of officers authorized at such risk is time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not reasonably assured to itsuperseded.
Appears in 1 contract
Samples: Indenture (Sealed Air Corp/De)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act601:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreementa Board Resolution;
(c) whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely conclusively upon an Officer's Certificate of the Company, any Owner Trustee or any Loan TrusteeOfficers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders Holders pursuant to this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) before the Trustee acts or refrains from acting with respect to any matter contemplated by this Indenture, it may require an Officers' Certificate or an Opinion of Counsel, which shall conform to the provisions of Section 102, and the Trustee shall be protected and shall not be liable for any action it takes or omits to take in good faith and without gross negligence in reliance on such certificate or opinion;
(g) the Trustee shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder;
(h) the 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 Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and
(i) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to ithereunder.
Appears in 1 contract
Samples: Indenture (Res Care Inc /Ky/)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the The Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party Person. The Trustee need not investigate any fact or parties;matter stated in the document.
(b) any request Before the Trustee acts or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by refrains from acting, it may require an Officer's Officers’ Certificate and or an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Counsel, or both. The Trustee shall deem it desirable that a matter not be proved or established prior to taking, suffering or omitting liable for any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, it takes or omits to take in the absence good faith in reliance on such Officers’ Certificate or Opinion of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request or direction of any of the Certificateholders pursuant to this Agreement, Holders unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which that might be incurred Incurred by it in compliance with such Direction;request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default (other than a payment default) unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Corporate Trust Office of the Trustee and such notice references the Notes and this Indenture.
(h) The Trustee may execute request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(i) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action.
(j) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Company or the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.
(k) The rights and remedies of the Trustee hereunder and under the other Note Documents are cumulative and are not exclusive of any rights or remedies provided by law.
(l) Except with respect to receipt of payments of the Notes and any Default or Event of Default information contained in the Officers’ Certificate delivered to it pursuant to Section 4.04 hereof, the Trustee shall have no duty to monitor or investigate the Company’s compliance with or the breach of any representation, warranty or covenant made in this Indenture.
(m) Delivery of reports, information and documents to the Trustee under this Indenture, including, without limitation, Section 4.03 hereof, is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the trusts Trustee is entitled to rely conclusively on Officers’ Certificates). The Trustee is under no duty to examine such reports, information or powers under documents to ensure compliance with the provisions of this Agreement Indenture or perform any duties under this Agreement either directly to ascertain the correctness or by otherwise of the information or through agents the statements contained therein.
(n) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian or attorneysother Person employed to act hereunder.
(o) No Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any misconduct act or negligence on the part of omission by any agent or attorney appointed with due care by it under this Agreement;Depositary.
(hp) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the The Trustee shall not be required to expend give any note, bond or risk its own funds surety in respect of the performance of any of its duties trusts and powers under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itIndenture.
Appears in 1 contract
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) In the absence of bad faith on its part, the Trustee may rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates, orders, requests, or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates, orders, requests, or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be protected in acting under a duty to examine the same to determine whether or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it not they conform to be genuine and to have been signed or presented by the proper party or partiesspecific requirements of this Indenture;
(b) any Any request or direction of the Company District mentioned herein shall be sufficiently evidenced by a written description Request of the subject matter thereof accompanied District; and any resolution of the Board of Commissioners of the District may be evidenced to the Trustee by an Officer's Certificate and an Opinion a Board Resolution of Counsel as provided in Section 1.02 of this Agreementthe District;
(c) whenever Whenever in the administration of this Agreement Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee’s Certificate;
(d) the The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this AgreementIndenture, unless such Certificateholders there shall have been offered to the Trustee reasonable security or indemnity satisfactory to it against the costcosts, expenses and liabilities which might be incurred by it in compliance connection with such Directionrequest or direction and for the payment of the Trustee’s fees in connection therewith; provided, however, that, anything to the contrary herein notwithstanding, no indemnification of the Trustee is required prior to the Trustee making payments on the Bonds when due, causing an acceleration or tender required by this Indenture, redeeming Bonds or drawing on the Credit Facility or the Liquidity Facility when directed by this Indenture (each a “Nondiscretionary Duty”), but the Trustee shall not be deemed to have waived or released its right to indemnification from any entity by its undertaking or discharging such Nondiscretionary Duty hereunder;
(f) The 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, approval, bond, debenture or other paper or document but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the District, personally or by agent or attorney;
(g) the The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, and but the Trustee shall not be responsible held liable for any negligence or misconduct or negligence on the part of any such agent or attorney appointed with due care by it under this Agreementcare;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the The Trustee shall not be required to expend take notice or risk its own funds be deemed to have notice of any Event of Default hereunder unless the Trustee shall be specifically notified of such Event of Default in writing by the District, or the Company or by the Holders of at least 30% of the principal amount of Outstanding Bonds, and in the performance absence of such notice the Trustee may conclusively assume that no Event of Default exists; provided, however, that the Trustee shall be required to take and be deemed to have notice of its failure to receive the money necessary to make payments when due of debt service;
(i) The Trustee may seek the approval of the Holders of the Bonds by any means it deems appropriate and not inconsistent with the terms of this Indenture in connection with the giving of any of its duties under this Agreement, consent or in the exercise taking of any action in its capacity as Holder of any Bond;
(j) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; and
(k) The permissive rights of the Trustee contained in this Indenture shall not be construed as duties of the Trustee.
(l) The Trustee shall be entitled to rely conclusively upon any direction given to it in accordance with Section 20.6(d) of the Facilities Lease. Notwithstanding the aforesaid, the Trustee shall be required to make all drawings on the Purchase Fund, the Credit Facility and the Liquidity Facility and pay the Holders of the Bonds at the times required under, and subject to the terms of, this Indenture and accelerate the Bonds if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itrequired by this Indenture.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Fortress Transportation & Infrastructure Investors LLC)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction; 44 39
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 1 contract
Samples: Pass Through Trust Agreement (America West Airlines Inc)
Certain Rights of Trustee. Subject to the provisions of Section 315 4.1, including without limitation, the duty of care that the Trust Indenture ActTrustee is required to exercise upon the occurrence of an Event of Default:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or partiesparties and the Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a written description Company Request or Company Order and any resolution of the subject matter thereof accompanied Board of Directors may be sufficiently evidenced by an Officer's Certificate a Board Resolution and an Opinion of Counsel as provided the Trustee shall not be liable for any action it takes or omits to take in Section 1.02 of this Agreementgood faith reliance thereon;
(c) whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith reliance thereon or an Opinion of the Company, any Owner Trustee or any Loan TrusteeCounsel;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel 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 reliance thereonaccordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the Direction request or direction of any of the Certificateholders Holders pursuant to this CVR Agreement, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costcosts, expenses and liabilities which might be incurred by it in compliance with such Directionrequest or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the Trustee shall not be liable with respect to for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with and believed by it to be authorized or within the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, discretion or exercising any trust rights or power powers conferred upon the Trustee, under it by this CVR Agreement; and;
(i) the Trustee shall not be required deemed to expend or risk its own funds in the performance have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Paying Agent, the Security Registrar, the Trustee in each of its duties under this Agreementcapacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) in no event shall the Trustee be responsible or liable for special, indirect, or in the exercise consequential loss or damage of any kind whatsoever (including, but not limited to, loss of its rights or powers, if it shall have reasonable grounds for believing that repayment profit) irrespective of whether the Trustee has been advised of the likelihood of such funds loss or adequate indemnity against such risk is not reasonably assured to itdamage and regardless of the form of action; and
(l) certain of the Trustee's duties hereunder may be performed by the Paying Agent or Security Registrar.
Appears in 1 contract
Samples: Contingent Value Rights Agreement (Fresenius Kabi Pharmaceuticals Holding, Inc.)
Certain Rights of Trustee. Subject to the provisions of Except as otherwise provided in Section 315 of the Trust Indenture Act:
(a) the The Trustee may rely and shall be protected in acting acting, or refraining from acting in reliance acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request Any request, direction, order or direction demand of the Company mentioned herein shall be sufficiently evidenced by a written description an instrument signed in the name of the subject matter Company by the (i) Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, its Director General, its President or any Vice President and (ii) its Director of Administration, its Secretary or an Assistant Secretary or its Treasurer or an Assistant Treasurer (unless other evidence in respect thereof accompanied be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Officer's Certificate and an Opinion Assistant Secretary of Counsel as provided in Section 1.02 of this Agreementthe Company;
(c) whenever in the administration of this Agreement the Trustee shall deem Before it desirable that a matter be proved acts or established prior to takingrefrains from acting, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(ed) the The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement Indenture at the Direction request, order or direction of any of the Certificateholders Holders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Holders shall have offered to the Trustee reasonable security or indemnity against the costcosts, expenses and liabilities which might may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f) Prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture or other paper or document with respect to the Notes unless requested in writing to do so by the Holders of not less than a majority in aggregate principal amount of the Notes then Outstanding; provided, however, that (i) if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during normal business hours and upon reasonable notice, the books, records and premises relevant to such inquiry or investigation, either personally or by agent or attorney; and (ii) if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in compliance with the making of such Directioninvestigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity or security against such expenses or liabilities as a condition to so proceeding. The reasonable expense of every such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) the The Trustee may execute any of the trusts or powers under this Agreement hereunder or perform any duties under this Agreement hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreementhereunder;
(h) the The Trustee shall not be liable with respect deemed to any action taken have knowledge of a Default or omitted to be taken by it in good faith in accordance with the Direction Event of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than Default until a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this AgreementResponsible Officer has received written notice thereof; and
(i) the The Trustee shall not have any duty, express or implied, to monitor the financial condition of the Company.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be required indemnified, are extended to, to expend or risk its own funds the extent reasonable, and shall be enforceable by, to the extent reasonable, the Trustee in the performance of any each of its duties under this Agreementcapacities hereunder, or in the exercise of any of its rights or powersand to each agent, if custodian and other Person employed by it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to itact hereunder.
Appears in 1 contract
Samples: Indenture (TMM Holdings Sa De Cv)
Certain Rights of Trustee. Subject to the provisions of Section 315 of the Trust Indenture Act:: 44 -39-
(a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
(f) the 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 or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
Appears in 1 contract
Samples: Pass Through Trust Agreement (America West Airlines Inc)
