Concerning Trustee. Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform and fulfill the trusts herein created. Trustee shall not be answerable or accountable hereunder except for its own willful misconduct or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving at least thirty (30) days' notice to Borrower and Beneficiary. In the event of the death, removal, resignation, refusal or inability to act of Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwise.
Appears in 2 contracts
Samples: Leasehold Deed of Trust and Security Agreement (Wells Real Estate Investment Trust Inc), Leasehold Deed of Trust and Security Agreement (Wells Real Estate Investment Trust Inc)
Concerning Trustee. Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. 4.01 Trustee, by its acceptance of this Security Instrumenthereof, covenants faithfully to perform and fulfill the trusts herein created. Trustee shall not be answerable , being liable, however, only for willful negligence or accountable hereunder except for its own willful misconduct or gross negligencemisconduct, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee it in accordance with the terms hereof. .
4.02 Trustee may resign at any time upon giving at least thirty (30) days' ’ notice in writing to Borrower and Beneficiary. to Lender.
4.03 In the event of the Trustee’s death, removal, resignation, refusal to act or inability to act of Trusteeact, or in its the sole discretion of Lender for any reason whatsoever, Beneficiary Lender may, at any time or from time to time without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successorsuccessor without conveyance from the predecessor trustee. Such substitute trustee shall not be required to give bond for the faithful performance of the its duties of Trustee hereunder unless required by BeneficiaryLender. Such substitute trustee shall be appointed by written instrument duly recorded in the county where the Premises are located, which appointment may be executed by any authorized agent of Lender and if Lender is a business trust or corporation and such appointment be executed on its behalf by any officer of such business trust or corporation, such appointment shall be conclusively presumed to have been executed with authority and shall be valid and sufficient without proof of any action by the Board of Trustees or Board of Directors or any superior officer of the business trust or corporation. Borrower hereby ratifies and confirms any and all acts which the herein named Trustee, or its successor or successors in this trust, shall do lawfully by virtue hereof. Borrower hereby agrees, on behalf of itself and of its heirs, executors, administrators and assigns, that the recitals contained in any deed or deeds executed in due form by Trustee or any substitute trustee, or its successor or successors in this trust, acting under the provisions of this Deed of Trust, shall be prima facie evidence of the facts recited, and that it shall not be necessary to prove in any court, otherwise than by such recitals, the existence of the facts essential to authorize the execution and delivery of such deed or deeds and the passing of title thereby.
4.04 At any time and from time to time, without liability therefor and without notice, upon written request of Lender, Trustee shall (i) consent in writing to the making of any map or plat of the Property, (ii) join in granting any easement thereon, (iii) join in any extension agreement or any agreement subordinating the lien or charge hereof, or (iv) upon presentation of this Deed of Trust and the Note or notes secured hereby for endorsement, and without affecting the personal liability of any person for the payment of the indebtedness secured hereby or the effect of this Deed of Trust upon the remainder of the Property, reconvey any part of the Property.
4.05 Upon written request of Lender stating that all sums secured hereby have been paid and upon surrender to Trustee of this Deed of Trust and the Note or notes secured hereby for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the Property then held hereunder to Borrower. The procedure provided for recitals in this paragraph for substitution such reconveyance of Trustee any matters or facts shall be in addition to and not in exclusion conclusive proof of any other provisions for substitution, by law or otherwisethe truth thereof.”
Appears in 1 contract
Concerning Trustee. (a) The Trustee has been appointed as Trustee pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture and all rights, privileges, protections, immunities, benefits and indemnities of the Trustee thereunder are incorporated herein by reference. The Trustee shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Indenture. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Trustee under this Agreement, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Trustee.
(b) The Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Trustee, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Trustee or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(c) The Trustee shall be entitled to conclusively rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(d) If any item of Pledged Collateral also constitutes collateral granted to the Trustee under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Trustee, in its sole discretion, shall select which provision or provisions shall control.
(e) The Trustee acknowledges and agrees that any provision of this Agreement to the contrary notwithstanding, (i) no Pledgor shall be required to act or refrain from acting (A) in a manner that is inconsistent with the terms or (B) with respect to any Pledged Collateral in any manner that would result in a default under the terms and provisions of any First Lien Financing Document and (ii) any action required to be taken by a Pledgor (or omission to act) pursuant to the terms of any First Lien Financing Document in respect of Pledged Collateral will not put such Pledgor in violation of or result in a default under the terms of this Agreement or the Indenture; provided, however, that (x) other than as required by the Indenture, this clause (ii) shall in no event require the release of any Liens securing the Obligations or (y) this clause (ii) shall not impair the right of the Trustee and the Noteholders to be secured by any Collateral.
(f) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to take any action hereunder except Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as expressly required hereunder to preservation of rights against prior parties or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform other rights pertaining thereto and fulfill the trusts herein created. Trustee shall not be answerable responsible for filing any financing or accountable hereunder except for its own willful misconduct continuation statements or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against recording any cost, loss, damage, liability documents or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain instruments in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign public office at any time upon giving at least thirty (30) days' notice or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to Borrower and Beneficiary. In have exercised reasonable care in the event custody of the death, removal, resignation, refusal or inability to act of Trustee, or Collateral in its sole discretion for any reason whatsoever, Beneficiary may, without notice possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee in good faith.
(g) The Trustee shall not be responsible for the faithful performance existence, genuineness or value of any of the duties Collateral or for the validity, perfection, priority or enforceability of Trustee hereunder unless required the Liens in any of the Collateral, whether impaired by Beneficiary. operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or wilful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) The procedure provided for in this paragraph for substitution of Trustee shall be have no duty to act outside of the United States in addition to and not in exclusion respect of any Collateral located in the jurisdiction other provisions for substitution, by law or otherwisethan the United States.
Appears in 1 contract
Concerning Trustee. (i) The Trustee has been appointed as trustee pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture. The Trustee shall be under no duty have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take any or refrain from taking action hereunder except as expressly required hereunder or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform and fulfill the trusts herein created. Trustee shall not be answerable or accountable hereunder except for its own willful misconduct or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur the release or sustain in substitution of the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensationPledged Collateral), in lieu thereof, for any services rendered by Trustee in accordance with this Agreement and the terms hereofIndenture. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign at and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any time upon giving at least thirty (30) days' notice appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to Borrower and Beneficiary. In become vested with all the event rights, powers, privileges and duties of the deathretiring Trustee under this Agreement, removal, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee’s resignation, refusal or inability the provisions hereof shall inure to act of Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may, without notice and without specifying any reason therefor and without applying benefit as to any court, select and appoint a successor trustee, actions taken or omitted to be taken by an instrument recorded wherever it under this Security Instrument is recorded, and all powers, rights, duties and authority of Agreement while it was the Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. .
(ii) The procedure provided for in this paragraph for substitution of Trustee shall be deemed to have exercised reasonable care in addition the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to and that which the Trustee, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not in exclusion of the Trustee or any other provisions for substitutionSecured Party has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any Person with respect to any Pledged Collateral.
(iii) The Trustee shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by law it to be genuine and correct and to have been signed, sent or otherwisemade by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
Appears in 1 contract
Samples: Pledge Agreement (Alta One Inc.)
Concerning Trustee. Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law law, or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security InstrumentDeed of Trust, covenants to perform and fulfill the trusts herein created. Trustee shall not be answerable , being liable, however, only for willful negligence or accountable hereunder except for its own willful misconduct or gross negligencemisconduct, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving at least thirty (30) days' notice to Borrower Grantor and to Beneficiary. Beneficiary may in its sole and absolute discretion and with or without cause remove Trustee at any time or from time to time and select a successor trustee. In the event of the death, removal, 26 resignation, refusal to act, or inability to act of Trustee, or in its sole and absolute discretion for any reason whatsoever, whatsoever Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument Deed of Trust is recorded, recorded and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required to do so by Beneficiary. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwise.
Appears in 1 contract
Samples: Deed of Trust (Nexthealth Inc)
Concerning Trustee. Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform and fulfill the trusts herein created. Trustee shall not be answerable or accountable hereunder except for its own willful misconduct or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving at least thirty (30) days' notice to Borrower and BeneficiaryLender. In the event of the death, removal, resignation, refusal or inability to act of Trustee, or in its sole discretion for any reason whatsoever, Beneficiary Lender may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by BeneficiaryLender. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwise.
Appears in 1 contract
Samples: Credit Line Deed of Trust and Security Agreement (Wells Real Estate Investment Trust Inc)
Concerning Trustee. (i) The Trustee has been appointed as trustee pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture. The Trustee shall be under no duty have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take any or refrain from taking action hereunder except as expressly required hereunder or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform and fulfill the trusts herein created. Trustee shall not be answerable or accountable hereunder except for its own willful misconduct or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur the release or sustain in substitution of the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensationPledged Collateral), in lieu thereof, for any services rendered by Trustee in accordance with this Agreement and the terms hereofIndenture. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign at and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any time appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Trustee under this Agreement, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee's resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Trustee.
(ii) The Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Trustee, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Trustee or any other Secured Party has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any Person with respect to any Pledged Collateral.
(iii) The Trustee shall be entitled to rely upon giving at least thirty any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(30iv) days' notice If any item of Pledged Collateral also constitutes collateral granted to Borrower and Beneficiary. In Trustee under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the deathprovisions hereof and the provisions of such other deed of trust, removalmortgage, resignationsecurity agreement, refusal pledge or inability to act instrument of any type in respect of such collateral, Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaiddiscretion, shall thereupon become vested in such successor. Such substitute trustee select which provision or provisions shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwisecontrol.
Appears in 1 contract
Samples: Security Agreement (Raceland Truck Plaza & Casino LLC)
Concerning Trustee. (i) The Trustee has been authorized to enter into this Agreement pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture. The Trustee shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Indenture. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Trustee under this Agreement, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Trustee.
(ii) The Trustee shall be under no duty deemed to take any action hereunder except as expressly required hereunder or by law or have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to perform any act that which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. the Trustee, by acceptance in its individual capacity, accords its own property consisting of this Security Instrumentsimilar instruments or interests, covenants it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to perform and fulfill calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the trusts herein created. Trustee or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(iii) The Trustee shall not be answerable entitled to rely upon any written notice, statement, certificate, order or accountable hereunder except for other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its own willful misconduct or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against any cost, loss, damage, liability or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain in the exercise or performance of its powers and duties hereunder. , upon advice of counsel selected by it.
(iv) If any item of Pledged Collateral also constitutes collateral granted to the Trustee hereby waives under any statutory fee other deed of trust, mortgage, security agreement, pledge or instrument of any type (other than the Indenture and agrees to accept reasonable compensationthe Intercreditor Agreement), in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving at least thirty (30) days' notice to Borrower and Beneficiary. In the event of any conflict between the deathprovisions hereof and the provisions of such other deed of trust, removalmortgage, resignationsecurity agreement, refusal pledge or inability to act instrument of any type in respect of such collateral, the Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaiddiscretion, shall thereupon become vested in such successor. Such substitute trustee select which provision or provisions shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwisecontrol.
Appears in 1 contract
Samples: Security Agreement (Us Lec Corp)
Concerning Trustee. (a) The Trustee has been appointed as Trustee pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture and all rights, privileges, protections, immunities, benefits and indemnities of the Trustee thereunder are incorporated herein by reference. The Trustee shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Indenture. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Trustee under this Agreement, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Trustee.
(b) The Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Trustee, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Trustee or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(c) The Trustee shall be entitled to conclusively rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(d) If any item of Pledged Collateral also constitutes collateral granted to the Trustee under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Trustee, in its sole discretion, shall select which provision or provisions shall control.
(e) The Trustee acknowledges and agrees that any provision of this Agreement to the contrary notwithstanding, (i) no Pledgor shall be required to act or refrain from acting (A) in a manner that is inconsistent with the terms or (B) with respect to any Pledged Collateral in any manner that would result in a default under the terms and provisions of any First Priority Lien Security Document and (ii) any action required to be taken by a Pledgor (or omission to act) pursuant to the terms of any First Priority Lien Security Document in respect of Pledged Collateral will not put such Pledgor in violation of or result in a default under the terms of this Agreement or the Indenture; provided, however, that (x) other than as required by the Indenture, this clause (ii) shall in no event require the release of any Liens securing the Obligations or (y) this clause (ii) shall not impair the right of the Trustee and the Noteholders to be secured by any Collateral.
(f) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to take any action hereunder except Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as expressly required hereunder to preservation of rights against prior parties or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform other rights pertaining thereto and fulfill the trusts herein created. Trustee shall not be answerable responsible for filing any financing or accountable hereunder except for its own willful misconduct continuation statements or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against recording any cost, loss, damage, liability documents or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain instruments in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign public office at any time upon giving at least thirty (30) days' notice or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to Borrower and Beneficiary. In have exercised reasonable care in the event custody of the death, removal, resignation, refusal or inability to act of Trustee, or Collateral in its sole discretion for any reason whatsoever, Beneficiary may, without notice possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee in good faith.
(g) The Trustee shall not be responsible for the faithful performance existence, genuineness or value of any of the duties Collateral or for the validity, perfection, priority or enforceability of Trustee hereunder unless required the Liens in any of the Collateral, whether impaired by Beneficiary. operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or wilful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) The procedure provided for in this paragraph for substitution of Trustee shall be have no duty to act outside of the United States in addition to and not in exclusion respect of any Collateral located in any jurisdiction other provisions for substitution, by law or otherwisethan the United States.
Appears in 1 contract
Samples: Pledge Agreement (Intcomex, Inc.)
Concerning Trustee. (a) The Trustee has been appointed as Trustee pursuant to the Indenture. The actions of the Trustee hereunder are subject to the provisions of the Indenture and all rights, privileges, immunities, benefits and indemnities of the Trustee thereunder are incorporated herein by reference. The Trustee shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Indenture and subject to the Intercreditor Agreement. The Trustee may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Trustee may resign and a successor Trustee may be appointed in the manner provided in the Indenture. Upon the acceptance of any appointment as the Trustee by a successor Trustee, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Trustee under this Agreement, and the retiring Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Trustee’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Trustee.
(b) The Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Trustee, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Trustee nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Trustee or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(c) The Trustee shall be entitled to conclusively rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(d) If any item of Pledged Collateral also constitutes collateral granted to the Trustee under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Trustee, in its sole discretion, shall select which provision or provisions shall control.
(e) The Trustee acknowledges and agrees that any provision of this Agreement to the contrary notwithstanding, (i) no Pledgor shall be required to act or refrain from acting (A) in a manner that is inconsistent with the terms and provisions of the Intercreditor Agreement or (B) with respect to any Pledged Collateral in any manner that would result in a default under the terms and provisions of any First Lien Financing Document and (ii) any action required to be taken by a Pledgor (or omission to act) pursuant to the terms of any First Lien Financing Document in respect of Pledged Collateral will not put such Pledgor in violation of or result in a default under the terms of this Agreement or the Indenture; provided, however, that (x) other than as required by the Intercreditor Agreement or the Indenture, this clause (ii) shall in no event require the release of any Liens securing the Obligations or (y) except as required by the Intercreditor Agreement, this clause (ii) shall not impair the right of the Trustee and the Noteholders to be secured by any Collateral.
(f) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to take any action hereunder except Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as expressly required hereunder to preservation of rights against prior parties or by law or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform other rights pertaining thereto and fulfill the trusts herein created. Trustee shall not be answerable responsible for filing any financing or accountable hereunder except for its own willful misconduct continuation statements or gross negligence, and Borrower agrees to indemnify, defend and hold Trustee harmless from and against recording any cost, loss, damage, liability documents or expense (including, without limitation, reasonable attorney's fees and disbursements) which Trustee may incur or sustain instruments in the exercise or performance of its powers and duties hereunder. Trustee hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign public office at any time upon giving at least thirty (30) days' notice or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to Borrower and Beneficiary. In have exercised reasonable care in the event custody of the death, removal, resignation, refusal or inability to act of Trustee, or Collateral in its sole discretion for any reason whatsoever, Beneficiary may, without notice possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Security Instrument is recorded, and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee in good faith.
(g) The Trustee shall not be responsible for the faithful performance existence, genuineness or value of any of the duties Collateral or for the validity, perfection, priority or enforceability of Trustee hereunder unless required the Liens in any of the Collateral, whether impaired by Beneficiary. operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or wilful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) The procedure provided for in this paragraph for substitution of Trustee shall be have no duty to act outside of the United States in addition to and not in exclusion respect of any Collateral located in the jurisdiction other provisions for substitution, by law or otherwisethan the United States.
Appears in 1 contract
